Hlasela v General Public Service Sectoral Bargaining Council and Others (P192/10) [2011] ZALCPE 13 (18 November 2011)

REPUBLIC OF SOUTH AFRICA

Reportable

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

JUDGMENT

case no: p192/10

In the matter between:

LULAMA HLASELA ….................................................................................Applicant

and

GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL …........................................First Respondent

COMMISSIONER JOHN C ROBERTSON N.O …......................Second Respondent

DEPARTMENT OF CORRECTIONAL SERVICES …....................Third Respondent

Heard: 15 November 2011

Delivered: 18 November 2011

Summary: Review for unreasonableness – no grounds for review established - dismissed with costs

BHOOLA J

Introduction

This is an application in terms of section 145 of the Labour Relations Act 66 of 1995, in which the applicant seeks an order reviewing and setting aside the award of the second respondent (“the arbitrator”) dated 5 July 2009 and issued under the auspices of the first respondent (under case number PSGA 980-07/08). The arbitrator dismissed the dispute referred by the applicant and found that the third respondent’s (“the Department’s”) conduct in not promoting him did not amount to an unfair labour practice.

The review was filed eight months late and condonation for the late filing was sought. The applicant has further delayed on more than one occasion in timeously prosecuting the review. Nevertheless, I am of the view that the applicant should be given the benefit of the doubt in respect of his efforts to obtain legal representation and secure finances and find that good cause has been shown for the delay. I proceed therefore to deal with the merits.

Background facts

The applicant was employed by the Department on 1 July 1992 as a Correctional Officer at Grade III. The third respondent had a policy of conducting assessments for promotions every year between 1995 and 2001. Promotion assessments were done in 1997 and 1999 but not in 1998. The applicant met the requirements for promotion (CO III to CO II) but did not submit his first year B.Juris results in time (he had passed three subjects), because he had to write a supplementary exam for the fourth in early 1998. He was promoted in 1999 on the same policy for promotions as was applied in 1997.

The applicant lodged a grievance and thereafter declared a dispute in which he alleged that the failure to promote him constituted an unfair labour practice within the meaning of section 186(2) of the LRA.

Grounds of review

The grounds of review are stated as follows in the applicant’s founding affidavit :

‘14. The Second Respondent erred grossly when he ruled that no assessment (sic) were held in 1998 because I had not referred to any incidents for that particular year and as such no assessment for me was scheduled. This is not the case as it was common cause that no assessment in totality was held during 1998. It was not because I failed to hand up an incident report that the assessments were not held.

15. The finding that I was not assessed during 1998 due to my action is not in line with the evidence produced and is indeed contradictory to the evidence produced at the hearing.

16. The Second Respondent further did not take into consideration that I was informally assessed during 1998 and that my direct superior as well as the next in line indeed supported my application to be promoted.’

Evaluation of merits

Mr Harker, appearing for the applicant, sought to clarify the obtuse grounds of review by submitting that the arbitrator failed to have regard to the key issue, which he presented as the applicant’s ‘legitimate or genuine expectation arising from his right or interest in ensuring an assessment in 1998’. Insofar as I understood his submissions, they were that the arbitrator had a duty to call upon the Department to produce evidence as to why it had not done assessments in 1998, and that his failure to address this issue resulted in an “unreasonable conclusion”. He implied that the arbitrator ought to have called for evidence since there was a possible adverse inference to be drawn from the fact that assessments had been held annually from 1995 to 2001 but had not been done for 1998. As a result of this omission, the applicant was denied a fair hearing. In addressing the grounds of review, he submitted that the applicant’s supervisor had moreover recommended that his promotion should be backdated at the time when he filed his grievance. Furthermore, the arbitrator contradicted himself when he found that the failure to promote the applicant arose from his not having filed critical incidents when it was clear that no assessments were held for anyone in 1998 and blame could therefore not have been attributed to the applicant.

Mr Wade submitted, on behalf of the Department, that the arbitrator recorded the critical issue in dispute as being whether the

applicant had the necessary educational qualifications (i.e. the required first-year B.Juris credits) during 1997. The ancillary issue centered on the question of whether he should accordingly have been promoted in 1997. As there were no assessments

in 1998, the relevance of determining his promotability in 1997 was that he would have been promoted with his colleagues and would then have qualified for further promotion in 1999. Instead, he in effect languished two years behind his colleagues. Mr. Wade submitted that the importance of this means that the applicant now misstates the issues in seeking to focus on what transpired during 1998 when this was never before the arbitrator. The applicant does moreover not take issue with the arbitrator’s delineation of the two critical issues to be determined. In this regard, the arbitrator stated that the following was in dispute between the parties :

‘Relative to the 1997 Promotions –

Whether the B.Juris degree qualified as a requirement in terms of the promotion policy (First year only).

Whether or not the employee qualified for assessment or not in 1997.’

Mr Wade submitted that the evidence of Mr Job (the Manager for Human Resources Administration), which remained largely unchallenged, was that the applicant did not qualify for promotion during 1997. The reason for this was that at the time he had only three first-year B.Juris credits and not the four required. The evidence was also that the results of the supplementary examination in respect of the fourth subject were only submitted after January 1998, i.e. after the relevant assessment period in 1997. What may have transpired during 1998 was accordingly not the focus of the arbitration, and the evidence was that he did not meet the defined promotion criteria and was accordingly not eligible for promotion in 1997. The arbitrator therefore accurately recorded that ‘the employee did not testify on this aspect i.e. the submission of incidents for 1998. In addition no assessment was held in 1998. The relevance of this is that the department would have no assessment or incidence on which to make a decision relating to 1998.’ The arbitrator then correctly concluded as follows:

‘[Hlasela] had failed to make out a case for promotion to CO II as of 1 July 1997 or during 1998. In this regard I note that dual responsibility rests on the employer and the employee vis-à-vis assessment. In other words once it has been announced that assessments will be made a supervisor cannot conduct an assessment until the employee submits the critical incidents. They could well be cases where an employee may not wish to apply for assessment.’

Despite the fact that section 138 (7) of the LRA requires an arbitrator to issue an award with brief reasons, the arbitrator provided a detailed and comprehensive award. The arbitrator summarised the substance of the applicant’s contentions then conducted a detailed analysis of the criteria for promotional assessment, both at the level of education and experience. He then applied the criteria to the applicant in considering the reasons why he was not promoted.

The arbitrator concluded that the relevant criteria for promotion had not been met by the applicant. He stated his conclusion as follows:

‘As at 1 July 1997 the promotion date in question the employee did not meet the requirement for promotion in particular he did not possess 4 first year credits. He obtained three credits at the end of the year and his 4th credit by way of a supplementary examination in January 1998. His peers who had obtained Module A and B of the Prison Management

Diploma, which served as a required qualification, by virtue of their years of service (5 years) the same as the employee’s, were assessed and promoted accordingly. The point is that as at 1 July 1997 the employee did not qualify and accordingly could not demand that he be assessed, this is why his name was not on the list. This applies equally at the end of 1997 as at this stage he had only three credits. Despite his complaints about not being assessed and taking the matter up with Human Resources, who advised him to ‘submit your supplementary and you will be considered for promotion’, the employee did not lodge a grievance as in his words he expected that he would be assessed in 1998. The above is in line with the PAS and in the circumstances his next opportunity for assessment would be 01 July 1998. As stated it is common cause that assessments for 1998 were not held. The reason for this is not known, the next assessment being 01 July 1999 during which process the employee was assessed and as he met the balance of the criteria he was promoted to CO II as from 1 July 1999, i.e the anniversary of the date he joined the department.’

The arbitrator then considered the years 1998 and 1999 and stated that it is not clear whether the applicant submitted “incidents”

(i.e. proof of the required qualifications) for both these years or only in 1999. The applicant, he stated, did not testify on this aspect and no assessment was held in 1998. He found that:

‘[t]he relevance of this is that the department would have no assessment or incidents on which to make a decision relating to 1998. The onus lies on the employee to prove his case and given the above I find on balance that it is more probable than not that the employee did not submit incidents for 1998. On the same basis it cannot be argued that the first three levels of authority (who would have been involved in his assessment, in particular his supervisor), who recommended in his grievance form that he be promoted with effect from 1998, should be treated as an assessment qualifying the employee for promotion in 1998 as no incidents or assessment exist for 1998.’

The arbitrator concluded then that the Department’s failure to address the applicant’s grievance (made in 2001) relating to his promotion in 1997-1998, does not assist him in establishing that he should have been promoted as he did not qualify in 1997 and no assessments were made in 1998. Therefore, there could in the circumstances be no “knock on effect”, and the applicant had failed to make out a case for promotion to CO II as of 01 July 1997 or during 1998.

However, as Mr. Wade submitted, even if this Court should find that the arbitrator committed a reviewable defect, it does not as a matter of course follow that the award should be reviewed and set aside. On the prevailing authorities as set out by Mr. Wade this result will not ensue where, in the context of reasonableness review, the applicant is unable to establish that the result of the award falls outside a range of reasonableness. In Sidumo,1 the Constitutional Court held that an arbitration award will be unreasonable and thus reviewable if it is a decision ‘that a reasonable decision-maker could not reach’. In applying this test Navsa J emphasised that it was necessary to weigh all the relevant factors together2, and that in a reasonableness review, the applicant must establish that the result of the award falls outside the range of reasonableness. In this regard, the Court held as follows:

‘[t]o my mind, having regard to the reasoning of the commissioner, based on the material before him, it cannot be said that his conclusion was one that a reasonable decision-maker could not reach. This is one of those cases where the decision-makers acting reasonably may reach different conclusions. The LRA has given that decision-making power to a commissioner.’3

[15] In my view, the applicant does not even begin to address the test on review. The pleadings and submissions were replete with

references to “errors” made by the arbitrator, embellished at appropriate moments by reference to “unreasonableness”. This does not by any means meet the Sidumo standard. This Court is being inundated with reviews being brought on spurious grounds simply where applicants are dissatisfied with the outcome despite the arbitrator having prepared a comprehensive and well-reasoned arbitration award based on a thorough application to the issues and evidence well beyond what is expected of him/her. In these circumstances, having regard to the submissions of the parties, I am unable to find that there is any basis to conclude that the arbitrator made a decision that could not have been made by a reasonable arbitrator on the material evidence. For this reason, the review must fail and there are no reasons why costs should not follow the result.

Order

[16] Therefore, I make the following order:

The application is dismissed with costs.

_______________________

Judge of the Labour Court

APPEARANCES

APPLICANT: Advocate BC Harker

Instructed by Marius Van Zyl Attorneys, Port Elizabeth.

THIRD RESPONDENT: Advocate RB Wade SC

Instructed by the State Attorney, Port Elizabeth.

1Sidumo and A-nother v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC).

2Sidumo at para 116.

3Sidumo at para 119.