Cloete v Commissioner for Concilation Mediation and Arbitration and Others (C370/2020) [2022] ZALCCT 46 (14 July 2022)

Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

CASE NO:C370/2020

In the matter between:

LIZETTE CLOETE

First Applicant

And

COMMISSIONER FOR

CONCILATION MEDIATION AND

ARBITRATION

First Respondent

COMMISSIONER DAVE WILSON N.O.

Second Respondent

WESTERN CAPE PROVINCIAL

PARLIAMENT

Third Respondent

GENEVIEVE ACCOM

Fourth Respondent

Date of Hearing: 29 June 2022

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 14h00 on 14 July 2022

Summary: Review Application- unfair labour practice relating to promotion- test for review

JUDGMENT

BARTHUS AJ

Introduction

[1] The Applicant launched a review application in terms of s145 of the Labour Relations Act 66 of 1995, to set aside an award by the Second Respondent (“the Commissioner”) dismissing an unfair labour practice dispute relating to promotion.

[2] The Commissioner found that the Applicant had failed to discharge the onus of proving that the Third Respondent (“the WCPP”) had committed an unfair labour practice by not appointing/promoting her to the position of Manager in the Office of the Secretary (“the post”). The Applicant is still employed by the WCPP in the position of Senior Procedural Officer within the Committee Section.

Material Facts

[3] Most of the facts presented were common cause.

[4] The Applicant applied for the post, was shortlisted, and invited for an interview in February 2019. Subsequently, the Applicant was recommended for appointment in March 2019.

[5] Mr Romeo Adams, the newly appointed Secretary who took office in April 2019, did not accept the recommendation for the Applicant’s appointment. His refusal was premised on grounds that his requirements for the position differed from the job profile as it was advertised. The Applicant was informed on 28 May 2019 that she was unsuccessful for the post.

[6] Mr Adams elected not to fill the post via the recruitment process, and instead applied the Transfer and Secondment Policy 38 of 2008 (“the Transfer Policy”). In June 2019, Mr Adams transferred Ms Genevieve Accom (who was serving as Manager in the Office of the Speaker) into the vacant post.

[7] Mr Adams amended the requirements for the post, and while there was a “marked difference” in the description, he contended that it did not exceed 50% of the job profile and hence a regrading of the post was not required.

[8] The Applicant was aggrieved that she was not afforded an opportunity to apply for the position with the amended profile. It was contended that the recruitment process should have been initiated afresh and that the substantial amendments to the profile warranted a regrading of the post.

[9] The Applicant argued that she was “successful” because the panel had recommended her for the post whereas the WCPP argued that it reserved the right not to accept the recommendation.

Most of the witnesses were ad idem that the WCPP had a right to exercise its discretion.

[10] The bone of contention revolves around whether Mr Adams’s interruption of the recruitment process and his election to apply the Transfer Policy had resulted in an unfair labour practice.

[11] The Applicant contended that the Functional Enhancement Principles (erroneously referred to as a policy) should have been applied and that they were not.

[12] The WCPP placed the following evidence before the Commissioner:

a) The amendments to the post did not constitute a more than 50% change

to its content.

b) The Functional Enhancement Principles is not a policy document and

therefore does not override the operation of the Transfer Policy. Moreover, it is not apparent on the face of the document whether it finds any application in the present instance.

c) The Third Respondent had the right to invoke the Transfer policy and

had complied with the requirements set out in it.

[13] The witnesses the Applicant called largely rendered opinion evidence. Adv Thorne, on behalf of the Applicant admitted that it was not expert evidence tendered by the Applicant’s witnesses. Mr Hindley, a previous Deputy Secretary, and panellist for the post testified that the recruitment process should have commenced afresh rather than to invoke the provisions of the Transfer Policy. Despite this view, he conceded that a recommendation of a selection panel was not binding.

[14] The former speaker, Ms Sharna Fernandez, testified that the recommendation for the Applicant’s appointment had not reached her office. According to Ms Fernandez the Functional Enhancement Principles should have applied for the filling of the post although she was not 100% certain.

[15] Mr Skrikker testified that the Route Form for Ms Accom’s transfer was back dated. This was admitted by the WCPP.

[16] The relevant section of the Transfer Policy reads as follows:

“ 7.3 Transfers

7.3.1 In the event where it is in the interest of the WCPP; an employee is

deemed to be better suited to the job requirements or environment of another position; or the priority areas of the WCPP shifts; the Secretary may transfer an employee to a position, on the same status and level in the institution;

7.3.2 Transfers will be done in consultation with the relevant employee;

7.3.3 An employee may request to be transferred to another position on the same salary level.”

The Test for Review

[17] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1], Navsa AJ held that the standards as contemplated by Section 33 of the Constitution[2] are in essence to be blended into the review grounds in Section 145(2) of the LRA and remarked that ‘the reasonableness standard should now suffuse s 145 of the LRA’. The learned Judge held that the threshold test for the reasonableness of an award was: ‘…Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?’[3]

[18] What Sidumo means is that to succeed with a review application, a review applicant must first show that there is a failure or error on the part of the arbitrator (an irregularity). If this cannot be shown to exist, then the review fails. If the irregularity is however shown to exist, the review applicant must secondly show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the irregularity, the review application similarly fails. In short, for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable.

[19] In Herholdt v Nedbank Ltd and Another[4] the Court said:

‘… A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside but are only of consequence if their effect is to render the outcome unreasonable.’.

[20] Succinctly described in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others[5], “the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions a reasonable decision maker could come to on the available material.”

[21] Thus, all the evidence and issues before the arbitrator must be considered to ascertain whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds[6]. In turn, this necessitates a consideration by the review court of the entire record of the proceedings before the arbitrator, as well as the issues raised by the parties before the arbitrator, with the view to establish whether this material and issues can, or cannot, sustain the outcome arrived at by the arbitrator.

[22] As stated in Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others[7]:

‘…. the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.’

Grounds of Review

[23] I shall summarise the grounds of review set out in the Applicant’s founding and supplementary papers since there is some duplication. According to the Applicant the Commissioner:

a) misconstrued and disregarded the evidence of Fernandez, Hindley and

Skrikker;

b) Failed to conduct the proceedings in a fair and consistent manner;

c) Issued an award inconsistent with the evidence presented;

d) Committed a gross irregularity in the conduct of proceedings; and

misconduct in relation to his duties;

e) Disregarded and failed to apply the principles to which Fernandez

testified with reference to the Functional Enhancement Principles

Evaluation

[24] Central to the dispute before the Commissioner was whether the Applicant as the recommended candidate had to be appointed into the post. The Applicant’s own witnesses conceded that it was the Secretary’s prerogative to accept the panel’s recommendation or not to. There was no obligation to appoint the Applicant.

[25] The Transfer Policy was correctly applied and provided the necessary vires for the Secretary to have made the appointment as he did.

[26] Golden SC argued that the Functional Enhancement Principles is not a policy and indeed this was conceded on behalf of the Applicant. Moreover, on the face of the document it was not clear how it was relevant to the filling of the post.

[27] The matter is not complicated. The Secretary deemed Ms Accom best suited to the requirements for the post and she was transferred to a similar management position on the same level of status and salary. The evidence before the Commissioner demonstrated that the Secretary complied with the provisions of Clause 7.3 of the Transfer Policy.

[28] The evidence presented by Hindley, Fernandez and Skrikker did nothing to advance the Applicant’s case. None of the Applicant’s witnesses could criticise the application of the Transfer Policy save

to argue that Mr Adams should have readvertised the post. This was no more than their expressed opinion. No argument was effectively

advanced to show that there was non-compliance with the Policy and that Ms Accom’s appointment was improper.

[29] As for Skrikker’s evidence, although the backdating of the Route Form is obvious bad practice nothing critical or prejudicial stemmed from the backdating.

[30] The Applicant may have been aggrieved with the way she was informed that she was not successful, and she may have been offended by the termination of the recruitment process given that she endured a rigorous interview process, but does this amount to an unfair labour practice? I am of the considered view that it does not.

[31] The Commissioner’s analysis of the evidence reveals that the entire conspectus of evidence was taken into consideration. The evidence relevant to the nature of the dispute was given its due weight.

[32] Although the Applicant asserted that the award was improperly obtained and that the Commissioner committed a gross irregularity in the proceedings, these allegations were not borne out by any evidence.

[33] It cannot be said that the Commissioners award is so unreasonable that no reasonable decision maker could have reached the conclusions he did.

Conclusion

[34] In Gold Fields Mining[8] the Court said:

“The questions to ask are these: (i) Did the arbitrator identify the dispute he was required to arbitrate….? (ii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iii) Did he or she deal with the substantial merits of the dispute? and (iv) is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?”

[35] In this instance all these questions can only be answered in the affirmative, and consequently the Commissioner’s award must be upheld.

[36] Since the employment relationship still subsists between the Applicant and the WCPP, I am not inclined to grant costs against the Applicant.

Order

[1] The arbitration award is upheld.

[2] No order as to costs.

Barthus AJ

Acting Judge of the Labour Court of South Africa

Representatives:

For the Applicant:

Adv M Thorne Instructed by: Denzil

Langeveld Attorneys

For the Third Respondent: Adv T Golden SC Instructed by: The State

Attorney

[1] (2007) 28 ILJ 2405 (CC)

[2] Constitution of the Republic of South Africa, 1996

[3] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[4] (2013) 34 ILJ 2795 (SCA) at para 25.

[5] (2014) 35 ILJ 943 (LAC) at para 14.

[6] See Fidelity Cash Management (supra) at para 102.

[7] (2015) 36 ILJ 1453 (LAC) at para 12.

[8] Supra at paragraphs 20 and 21