IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
REPORTABLE
CASE NO D252/03
DATE HEARD 2004/05/10
DATE DELIVERED 2004/05/14
In the matter between:
PSA ON BEHALF OF S W HASCHKE Applicant
and
MEC FOR AGRICULTURE AND OTHERS Respondents
JUDGMENT DELIVERED BY
THE HONOURABLE MADAM JUSTICE PILLAY
ON BEHALF OF APPLICANT: ADV. I VAN DER MERWE
INSTRUCTED BY: DENEYS REITZ
ON BEHALF OF 1ST & 2ND RESPONDENTS: ADV. S M GOVENDER
INSTRUCTED BY: STATES ATTORNEY
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JUDGMENT 14 MAY 2004
PILLAY J
The applicant seeks to review and set aside the award of the fourth respondent
commissioner, refusing condonation of the late referral of its dispute for
conciliation to the third respondent, the Commission for Conciliation, Mediation
and Arbitration ("the CCMA").
In limine the first and second respondents submitted that the application was not
competent and was premature. The applicant contended that the Commissioner
had not provided any reasons for her decision. However, the Commissioner was
not obliged by the Labour Relations Act No 66 of 1995 ("the LRA") its Rules or
Guidelines or the Employment Equity Act of No 55 of 1998 (“the EEA”) to furnish
reasons. But, as an administrative organ, the CCMA was bound by the Promotion
of Administrative Justice Act No 3 of 2000 ("PAJA"), read with section 33(2) of the
Constitution. PAJA is an option that an employee or employer may exercise to
request reasons from a Commissioner. A suitably-worded letter to the fourth
respondent, compelling her in terms of PAJA to furnish reasons for her decision
could have obviated this litigation, so it was submitted.
Neither Mr Govender for the first and second respondents, nor Mr van der Merwe
for the applicant had prepared sufficient heads on the applicability of PAJA to the
dispute. The matter was stood down until the next morning to enable them to do
so.
Shortly into his argument, Mr Govender found that he was arguing against
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himself. Consequently he withdrew the point in limine . However, the issues
raised are sufficiently important to warrant comment by the Court.
The relevance of PAJA to labour disputes is controversial. The controversy has its
roots in Carephone (Pty) Limited v Marcus N.O. 1999 (3) SA 304 (LAC). There
FRONEMAN DJP's finding that the CCMA is an organ of State led to the
conclusion that arbitration awards issued by the CCMA have to be tested for
justifiability against the constitutional right to just administrative action.
Carephone was decided under the Interim Constitution, Act No 200 of 1993,
which gave direct access to the right to just administrative action. It was not
regulated by national legislation as it is now under the Final Constitution, Act
No 108 of 1996.
Inspired by an obiter remark by NICHOLSON JA in Toyota SA Motors (Pty)
Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC), WALLIS AJ in Shoprite Checkers
(Pty) Limited v Ramdow NO and 15 Others (2000) 7 BLLR 835 and LANDMAN J,
who agreed with him in Volkswagen (SA) (Pty) Limited v Brand NO and Others
(2001) 22 ILJ 993 (LC), (2001) 5 BLLR 558 (LC) and Netherburn CC trading as
Netherburn Ceramics v Mudau and Others (2003) 10 BLLR 1034 (LC) took the
view that CCMA arbitration is not administrative action, PAJA does not apply and
that section 145 of the LRA narrowed the grounds of review.
ZONDO JP in the Labour Appeal Court decision of Shoprite (2001) 9 BLLR 1011
(LAC) doubted the correctness of the finding in Carephone that an arbitration
award constituted administrative action, but, he remarked obiter that PAJA and
its definition of administrative action may well apply to CCMA awards. Applying
the Constitutional Court's decision in Pharmaceutical Manufacturers Association
of South Africa in re EP President of the RSA 2002 SA 674 (CC) he held that
irrationality is a ground of review of the exercise of public power and the issuing
irrationality is a ground of review of the exercise of public power and the issuing
of a CCMA award is an exercise of public power.
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Since then the Constitutional Court has held in Bato Star v Minister of
Environmental Affairs and Tourism, the Chief Director Marine and Coastal
Management Department of Environmental Affairs and Tourism Certain Rights
Holders , case No CCT 27/03 at paragraph 22 (unreported) per O Reagan that:
"Courts power to review administrative action no longer flows directly from the common law
but from PAJA and the Constitution itself. The grundnorm of administrative law is now to be
found, in the first place, not in the doctrine of ultra vires nor in the doctrine of parliamentary
sovereignty, nor in the common law itself, but in the principles of our Constitution. The
common law informs the provisions of PAJA and the Constitution, and derives it forces from
the latter. The extent to which the common law remains relevant to administrative review
will have to be developed on a case by case basis as the Courts interpret and apply the
provisions of PAJA and the Constitution."
Bato Star confirms that there is no direct access to section 33 of the Final
Constitution other than through PAJA. (J R de Ville Judicial Review of
Administrative Action in South Africa 2003 at 5, Bato Star at para 25.) It follows
from that judgment that the constitutional right to just administrative action
may be invoked only if PAJA applies to decisions in labour disputes.
[10] It is now an open question whether CCMA awards and rulings and decisions of a
public employer are administrative actions under PAJA.
Labour law is not administrative law. They may share many common
characteristics. However, administrative law falls exclusively in the category of
public law, whereas labour law has elements of administrative law, procedural
law, private law and commercial law. Historically, recourse has been had to
administrative law to advance labour rights where labour laws were inadequate.
(Administrator of the Transvaal and Others v Traub and Others 1989 (4) SA 731
(Administrator of the Transvaal and Others v Traub and Others 1989 (4) SA 731
(A), (1989) 10 ILJ 823 (A); Administrator, Transvaal, and Others v Zenzile 1991
(1) SA 21 (A), (1991) 12 ILJ 259 (A); Administrator, Natal, v Sibiya (1992) 4 532
4
(AD))
[12] However, pursuant to the affirmation in the Interim Constitution and the Final
Constitution that everyone has a right to fair labour practices, the LRA, the EEA
and the Basic Conditions of Employment Act No 75 of 1997 ("the BCEA") codified
labour and employment rights. Adjustments were also made to other national
laws, such as the Public Service of Act, Proclamation 103 of 1994, the Police
Services Act 68 of 1995 and the Employment of Educators Act 76 of 1998, to
bring them in line with the Constitution.
[13] The purpose of the LRA and the BCEA is to give effect to and regulate the
fundamental rights to fair labour practices conferred by section 27 of the Interim
Constitution or section 23 of the Final Constitution. (section 1(a) of the LRA and
section 2(a) of the BCEA) The EEA does not have a similar section. Labour rights
such as the right to due process, to substantively fair reasons and the remedies
for non-compliance are codified in the LRA. Similarly, the EEA and BCEA were
also promulgated prior to PAJA with a view to codifying the right to equality in
the context of employment and labour standards respectively.
[14] At the same time, as with any legislation, the LRA, the EEA and BCEA (“the
labour laws”) must be interpreted in compliance with the Constitution. Therefore,
although there is no explicit statutory injunction in the labour laws to give effect
to the right to just administrative action, there is an obligation to comply with it
as one of the rights in the Bill of Rights. However, if the right to just
administrative action competes or is in conflict with the right to fair labour
practices then the LRA and the BCEA, read with the constitutional right to fair
labour practices, must prevail over the right to administrative justice.
[15] This view is reinforced if regard is had to sections 210 and 63 of the LRA and the
EEA, respectively. These sections, which are similarly worded, state that if any
EEA, respectively. These sections, which are similarly worded, state that if any
conflict arises between these Acts and the provisions of any other law, save the
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Constitution or any Act expressly amending these Acts, the provisions of these
Acts will prevail.
[16] The right to fair labour practices may be accessed from the Constitution direct.
Everyone has this right. ( NUMSA v Baderbop (2003) ILJ 305 (CC) at para 62 and
67; Netherburn CC @ 1726; SA National Defence Union v Minister of Defence &
Another (1999) 20 ILJ 2265 (CC); SA National Defence Union & Another v Minister
of Defence & Others; SA National Defence Union v Minister of Defence & Others
(2003) 24 ILJ 2101 (T) (per Smit J) and NAPTOSA & Others v Minister of
Education, Western Cape & others (2001) 22 ILJ 889 (C) per Conradie J)
Consequently, insofar as labour laws are deficient, the fair labour practice
clause in the Constitution can be invoked. There is no need to have recourse to
administrative law.
[17] Do Commissioner's rulings amount to administrative action?
[18] The LRA and the CCMA Rules and Guidelines distinguish between rulings
and awards of Commissioners. Awards are reviewed on the narrow grounds of
section 145 of the LRA. Rulings are reviewed under section 158(1)(g) of the
LRA. The latter section provides for the review of the performance of any
function provided for in the LRA. The standard of review of rulings, however, is
"subject to section 145", but it may also be "on any grounds that are reasonable
in law". It is wider than the standard set for the review of awards.
[19] It seems to me that rulings are reviewed under section 158(1)(a) only
because they are not awards. Yet both awards and rulings are outcomes of
adjudicative processes.
Conceptually, arbitration is distinct from an administrative process.
(Shoprite Labour Court at paragraph 89.) It is adjudication that is alternative to
litigation. Arbitration may have many features common with adjudicative
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administrative acts. However, merely because an official is conducting it under
the auspices of an administrative organ does not alter its essential character.
[21] The nature and the essential content of the process of issuing rulings are similar
to arbitration. As such, they too do not amount to administrative action. If this
were not so, then the anomaly that arises is that a ruling made in the course of
an arbitration and which finds itself as one of the grounds of review of an award
is tested against section 145, whereas other rulings that are made outside of
arbitration are tested against section 158(1)(g). I cannot see any reason why a
different test should apply to awards and rulings.
[22] Rulings are distinguishable from the performance of other acts in terms of the
LRA. For instance, a Commissioner who issues a certificate of non-resolution of a
dispute performs a ministerial or purely administrative act. Such acts are
distinguishable from adjudicated decisions, which require the exercise of a
judicious, instead of a formal discretion.
[23] As discussed below, the Labour Court and the Labour Appeal Court may not hear
matters under PAJA until its rules have been implemented. If PAJA applies to
ministerial administrative acts of the CCMA then reviews of such acts lie to the
High Court. What then should be the standard of review? That raises the spectre
of another unintended consequence of PAJA, namely that of splitting jurisdiction
over labour laws between the High Court and the Labour Court.
[24] I turn to consider whether PAJA contains any provisions that might apply to CCMA
awards and rulings. PAJA defines administrative action to include any decision or
failure to take a decision by an organ of State when exercising public power in
terms of any legislation. As an institution that exercises public power and
performs a public function in terms of the LRA, the CCMA is an organ of State.
performs a public function in terms of the LRA, the CCMA is an organ of State.
(Section 239 of the Final Constitution, Carephone, Netherburn above).
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Furthermore, the CCMA is funded principally by the State. (section 122 of
the LRA) It therefore meets the government -function and the government entity
tests devised for identifying an organ of state. The control test developed by Van
Dijkhorst J in Directory Advertising Cost Cutters v Minister of Posts,
Telecommunications & Broadcasting & Others 1996 C (3) SA 800 (T) at 810F-G,
for determining whether an entity is an organ of state does not apply to the
CCMA. (JR de Ville above at 41-43)
CCMA arbitration awards and rulings and decisions by other organs of state
affecting employment are not in the list of exclusions that make up the definition
of administrative action. The definition of administrative action tempts one to
accept that PAJA applies to labour and employment decisions. ( Shoprite (LAC),
Basson v Provincial Commissioner, Eastern Cape, Department of Correctional
Services (2003) 24 ILJ 803 (LC) and National Employers Forum v Minister of
Labour and Others (2003) 24 ILJ 954 (LC).)
[27] However, from a survey of other provisions of PAJA a different picture emerges.
If PAJA applies to CCMA awards and rulings then the standard of review will be
codified in terms of section 6(2) of PAJA. The rigidity of section 6(2) of PAJA will
compete with the relative flexibility of section 145 of the LRA.
[28] The grounds of review under section 145 are misconduct by the arbitrator,
commission of a gross irregularity, acting ultra vires and improperly obtaining an
award. The PAJA grounds of review are a complete codification of the common
law grounds of review. Any ground not specifically mentioned has been captured
in the catch-all clause that empowers a court to review action that is otherwise
unconstitutional or unlawful. Such a comprehensive codification can encourage
a mechanical checklist mentality when reviewing awards.
[29] Professor Cora Hoexter observes that codification of the grounds of review might
[29] Professor Cora Hoexter observes that codification of the grounds of review might
inspire not only a greater incidence of review but also a greater degree of
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interference with the merits of the decision. (Hoexter, Cora "Future of Judicial
Review in South African Administrative Law", South African Law Journal 500.)
[30] PAJA permits delving into the merits, given the constitutional injunction that
administrative action must be lawful and reasonable. (Section 33 of the Final
Constitution read with section 6(2)(e) of PAJA.) Or, as it was put in
Pharmaceutical, the exercise of any public power must be rational.
[31] However, the difference with the application of the rationality test in
administrative law and labour law is that under labour law it is in the context of
meeting labour law objectives. Rationality under PAJA must be assessed in the
context of meeting administrative law objectives.
[32] How deep does a review court delve into the merits of an award, a ruling or
public employer’s decision? The following extract from Bato Star provides some
guidance:
What will constitute a reasonable decision will depend on the circumstances of each case,
much as what will constitute a fair procedure will depend on the circumstances of each
case. Factors relevant to determining whether a decision is reasonable or not will include
the nature of the decision, the identity and expertise of the decision-maker, the range of
factors relevant to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and well-being of
those affected. Although the review functions of the court now have a substantive as well as
a procedural ingredient, the distinction between appeals and reviews continues to be
significant. The court should take care not to usurp the functions of administrative agencies.
Its task is to ensure that the decisions taken by administrative agencies fall within the
bounds of reasonableness as required by the Constitution.
[33] It remains to be seen how helpful these general guidelines are to labour
[33] It remains to be seen how helpful these general guidelines are to labour
law reviews. Whether it would return the standard of review of awards and
9
rulings to that which was originally intended i.e. a standard akin to that which
prevailed under section 33 of the Arbitration Act No 42 of 1965 for private labour
arbitration, depends on how the jurisprudence unfolds henceforth.
[34] If PAJA applies to labour law decisions it could widen the door that Carephone
opened to the risk of judges substituting their decisions for those with which they
simply do not agree. If that happens then the objective of speed and finality of
dispute resolution will be thwarted.
[35] Some of the PAJA grounds of judicial review overlap with the section 145
grounds. It has been an abiding concern in the labour law community that
section 145 is interpreted too widely and that the distinction between appeal and
review is being blurred. To subject CCMA adjudication to a constitutional test for
just administrative action could not only broaden the grounds of review and blur
the distinction between appeal and review even further but also cause parallel
streams of jurisprudence to develop : one for private and bargaining council
adjudication and another for CCMA adjudication; one for High Court decisions,
another for Labour Court decisions, one for administrative law decisions, another
for labour law decisions.
[36] Mr Govender conceded that the PAJA procedure for judicial review (section 7 of
PAJA) clashes with the labour law procedures. The PAJA procedures are
substantially more protracted because the time limits for filing are longer and
could be extended further. (Section 9 of PAJA.) Section 5 of PAJA allows 90 days
within which to request reasons for administrative action from an administrator
who, in turn, has a further 90 days to furnish reasons. On the other hand, CCMA
awards must be issued within 14 days after a hearing. The practice is also to
issue rulings quickly. PAJA requires all internal remedies to be exhausted first.
Under the LRA, an internal appeal against dismissal may be bypassed.
Under the LRA, an internal appeal against dismissal may be bypassed.
[37] A typical example of ministerial administrative act is the deregistration of
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trade unions. The LRA directs the registrar to furnish reasons for his decision
within 30 days of receiving a request. An appeal against his decision may be
launched within 60 days to the Labour Court. Judicial review under PAJA must be
launched within 180 days. It seems to me that section 210 will oust the
application of PAJA because of the conflict. But, if I am wrong then any ambiguity
in the statutes is for the attention of the Legislature.
[38] The PAJA remedies prescribed are all quite at odds with the labour laws. The LRA
conceives reinstatement as a primary remedy and pegs the amount of
compensation for unfair dismissal. PAJA empowers the Court to direct the
administrator to act in any manner that it requires.
[39] Public employees have relied on rights to administrative justice and fair
labour practices. (Semela and Others v MEC for Education, Eastern Cape, and
Another (2001) 22 ILJ 1688 (LC), (2001) 9 BLLR 1085 (LC) per FRANCIS AJ, as he
then was.) Section 158(1)(h) has been used to invoke the application of PAJA.
(Basson above.) The section empowers the Labour Court to review any decision
taken or any act performed by the State in its capacity as employer on such
grounds as are permissible in law. Section 158(1)(h) does not prescribe the
grounds of such review. However, Bato Star spawns a debate on the efficacy of
judicial review of decisions affecting employment in terms of administrative law
as regulated by PAJA.
[40] For example, a public employer decides not to appoint an employee in
deference to a collectively endorsed affirmative action plan. The employee wants
to review the employer's decision as being irrational because it is discriminatory.
In another case a public employee is suspended without a prior hearing. It is
arguable that PAJA gives the employee as dominus litus a choice: She may base
her claim on either the LRA and other labour laws or PAJA.
her claim on either the LRA and other labour laws or PAJA.
However, exercising a choice between PAJA and labour law is linear.
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Labour law is polycentric. Affirmative action is collectively bargained as a
planned progression towards employment equity. Disputes arising from it must
be channeled through the carefully constructed procedure of conciliation
followed, if necessary, by adjudication. Conciliation seeks to address all interests
as opposed to determining rights. Insofar as rights have to be determined by
adjudication, this is accomplished by specialists who must give effect to the
primary objectives of the labour laws. If the claim succeeds should, as a matter
of policy, such individual action be allowed to trump collectively bargained
decisions? The objectives of the LRA compel one to answer this question in the
negative. Suspension of employment too has a domino effect on other interests
which have to be mediated. If the decision is reviewable under PAJA, the
implications for collective bargaining and effective dispute resolution could be
catastrophic.
Then there are decisions of a public employer concerning employment that
are ministerial administrative actions. Such would be the case when the decision
is a mere formality. Whether a decision is purely ministerial depends on the
circumstances and reasons for each decision. Thus a public employer may
refuse to authorise an employee’s application for leave. If the reason for his
refusal is the non-compliance with prescribed requirements his decision would be
a formality. However, if the refusal is underpinned by ulterior motives, then it
could arguably be an unfair labour practice under section 186(2) of the LRA .
[43] It is arguable that such decisions and others which are not caught in the
net of the labour laws should fall into the trough of PAJA so that an aggrieved
party has an avenue for relief. In my view, however, the distinction between
ministerial and other decisions are irrelevant in employment disputes. All
ministerial and other decisions are irrelevant in employment disputes. All
decisions affecting employment should be processed in terms of the labour laws
and the Constitution. I say so because an employer and other employees
affected by its decision are entitled to the resolution of disputes in accordance
with the objectives of the labour laws. Thus an employer may organise its affairs
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on the basis that a dispute is not likely to be referred for conciliation after 90
days of a decision, unless, exceptionally condonation is granted. Therefore,
although an aggrieved employee may appear as dominus litus to have a choice
of fora and causes of action, such choices are limited by the countervailing rights
of the employer and other affected employees. If the labour laws provide no
remedy then the probabilities are that neither the Legislature nor the social
partners who participated in the drafting of the labour laws intended to provide a
remedy in those circumstances.
Mr Govender submitted that PAJA excludes the Labour Court and the
Labour Appeal Court from its definition of "court". Consequently, the Labour
Court and the Labour Appeal Court may not adjudicate any matter arising from
PAJA.
If this were so it could, in my view, be decisive of the question whether
PAJA applies to Commissioner's awards and rulings. However, the Labour Court is
a “court of similar status” to the High Court. (section 151 of LRA) The Labour
Appeal Court is a court equal in status to the Supreme Court of Appeal. (Section
167 of LRA) As appeals from the Labour Court are to the Labour Appeal Court,
the latter will have jurisdiction to hear employment disputes in which PAJA is
raised, assuming that PAJA otherwise applies to such disputes. If the intention of
the Legislature was to exclude the application of PAJA to labour disputes then the
definition of “court” also calls for legislative amendment.
For the time being, however, the provisions of PAJA are inoperable
because the rules of procedure contemplated in section 7(4) of PAJA have not
been implemented. Until they are implemented proceedings in terms of PAJA
must be instituted only in a High Court or the Constitutional Court. ( Transwerk v
Independent Medical Services of SA and Others (2002) 23 ILJ 2313 (LC) at 50;
Volkswagen per Landman J.)
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In the circumstances the point in limine was correctly withdrawn.
[48] This application for a review of the refusal of condonation is prefaced by an
application for condonation. I directed that the merits of the review be
canvassed first. If the applicant succeeds, then the other criteria for condonation
of the review will be considered.
[49] On the merits of his complaint of discrimination, the applicant submitted to the
arbitrator that the Department did not have a proper affirmative action policy or
plan when Moodley was appointed. Alternatively, the plan had not been
carefully constructed, nor did it evolve in a transparent and inclusive manner.
He denied that the PSA had been involved or consulted about the contents of
such a plan or policy. Further alternatively, he contended that the Department
did not follow its own plan. Furthermore, the Department employed affirmative
action in an over-broad manner, as white managers for the period 1996 to 2002
were less representative than the Department's target of 2005, whilst Indian
managers were over-represented.
[50] All this was denied by the Department. It relied, in the first instance, on the Final
Constitution, in particular section 195 thereof, the EEA and various white papers
pertaining to transformation of the public service. Secondly, it relied on its
affirmative action policy which it alleged was in place at the time. Thirdly, it
relied on the EEA for the definition of "black", which included Indians.
[51] In these proceedings the first and second respondents elaborate on the
employment equity plan and the process followed in securing its registration in
October 2000. This information does not appear to have been as fully canvassed
at the arbitration. That the respondents might have implemented a plan that
had not been formally registered is not significant. ( Department of Correctional
Services v Van Vuuren (1999) 20 ILJ (LAC))
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[52] I have held that the Constitution provides an independent ground for
implementing affirmative action in an unreported decision. ( Martin Gordon v
Department of Health, KwaZulu Natal Provincial Administration Case No
D398/1998) However, if there is a plan then it must be followed.
[53] In this case there was a dispute of fact as to whether there was a properly
processed plan. If the dispute has to be resolved on the papers it must be in
favour of the first and second respondents. ( Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) ).
On the plan that was before the Commissioner, at middle management level
whites numbered 50 and Indians 5. The target was to reduce the number of
whites to 30 and to increase Indians to 9 by 2010. On the face of it, it would
appear that the applicant's allegations about under representation by whites
were unsubstantiated.
[55] As the applicant has no prospects of success on the merits whatsoever, the
application for condonation must fail. Accordingly, the review must also fail. I
nevertheless turn to consider the other criteria relevant to condonation.
[56] On 8 September 2000 the applicant learnt that his application for promotion was
unsuccessful. He requested the results of his interview from the Department on
26 September and 18 December 2000. Having received no response, he lodged
a grievance. By letter dated 11 January 2001 he was given the minutes of his
interview. It recorded that the applicant was found suitable for the post of
Director, South-West. He relodged his grievance on 6 March 2001. The
settlement he desired was disclosure of his position on the merit list as per the
ranking of the interview panel and for implementation of the panel's
recommendation.
[57] It would seem that the applicant might have had some insight as to what the
panel's recommendation was, otherwise he would not have had an interest in its
15
implementation. As it turns out, he was ranked first for the post. This was
disclosed to him by letter dated 22 June 2001.
[58] The 14 August 2001 was the first time the applicant, represented by his trade
union, the Public Servants Association ("the PSA"), asked the Department how it
came about that the first respondent, in conjunction with the Department,
appointed somebody else, despite the applicant being found to be the most
suitable. The Department did not respond.
[59] The applicant referred a dispute pertaining to the disclosure of information. It
was scheduled for conciliation on 15 November 2001. The Department furnished
the applicant with further information, including a memorandum signed by the
first respondent, confirming the appointment of one Moodley, and his reasons
therefor. The memorandum reads as follows:
"All comments have been noted and considered. I agree that scoring alone cannot be the
sole criterion in the appointment of a 'manager'. I believe that Mr Moodley has proven
himself in the held and as he has also been found capable of doing the job and in keeping
with representativity in Government service, which is a constitutional imperative, I after
discussions with the head of department, Mr H B Strauss, hereby confirm that Mr Moodley
be appointed as Director, South-West Region, with effect from 1 September 2000."
[60] The applicant could have been left in no doubt that the appointment was based
on racial representativity. It was potentially a claim based on unfair
discrimination. Instead, the applicant and his trade union elected to refer the
dispute as an unfair labour practice pertaining to his non-promotion to the Public
Service Co-ordinating Bargaining Council.
[61] The applicant alleges that it was only on 20 March 2002 that the Department
made it clear to him and his trade union that its decision was based on
affirmative action. Realising that his case was based on discrimination, he also
16
became aware that the CCMA should have conciliated the dispute and not the
Bargaining Council.
[62] He then sought counsel's advice and further information pertaining to the
existence of employment equity plans and policies in the Department. This
information was supplied to the applicant on 11 July 2002. Counsel gave his
opinion on 22 August. After certain internal processes, Counsel was briefed in
September 2002. The geographical distance between the trade union, the
applicant and his counsel contributed to the delay.
[63] An incomplete application for conciliation was made on 24 October 2002. Form
7.11 was eventually submitted on 10 December 2002 - more than two years
after the applicant became aware of his non-appointment.
[64] The applicant's reaction on hearing that he was not appointed, should have been
to ask for reasons therefor. Neither the minutes of his interview nor his ranking
on the merit list would have informed him why the first respondent did not
appoint him. The interview panel merely made a recommendation to the first
respondent who decided on the appointment. It is his decision that the applicant
should have interrogated from the outset.
[65] At no time in the two years and three months that it took for the condonation
application to be filed did the applicant demonstrate any sense of urgency. The
misconception by him and the PSA of the nature of the dispute is also not
reasonable. The PSA is a long-established and experienced trade union.
I accordingly find that the period of delay is substantial and the explanation
therefor unacceptable.
With regard to the Commissioner's reasons, I take note that Commissioners are
not obliged to furnish reasons in terms of the LRA. However, it is an elementary
principle of the rule of law which has been adopted by the CCMA in practice that
17
parties have a right to know the reasons for the outcome of their dispute. The
reasons supplied by the Commissioner do not adequately inform the parties to
the dispute. To that extent, it must be criticised. However, her conclusions must
stand in the light of my finding on the merits.
[68] The application is dismissed.
The applicant is ordered to pay the costs.
_____________
Judge Pillay, D
10 June 2004
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