Hlope v Head of Department: Department of Education KZN and Others (D755/2021) [2024] ZALCD 4; (2024) 45 ILJ 805 (LC) (18 January 2024)

FLYNOTES: LABOUR – Promotion – Invalid appointment – Alleges unfair labour practice – Contends respondent did not apply for post yet was granted position – Arbitrator ignored evidence presented confirming same – Gross irregularity to ignore crucial evidence – Award reviewable – Respondent should not have been considered due to non-compliance with qualification requirements – Non-promotion procedurally and substantively unfair – Award reviewed and set aside – Labour Relations Act 66 of 1995, s 145.

IN THE LABOUR COURT OF SOUTH AFRICA

CASE NO: D755/2021

In the matter between:

NTOMBEZIPHELELE DORCAS CYNTHIA HLOPE

APPLICANT

and

HEAD OF DEPARTMENT: DEPARTMENT OF

EDUCATION KZN

FIRST RESPONDENT

MEC: DEPARTMENT OF EDUCATION KZN

SECOND RESPONDENT

COMMISSIONER A S DORASAMY N.O.

THIRD RESPONDENT

EDUCATION LABOUR RELATIONS COUNCIL (ELRC) FOURTH RESPONDENT

SINDISWE EDITH NGUBANE

FIFTH RESPONDENT

Application heard: 09 May 2023

Delivered Electronically: 18 January 2024

JUDGMENT

KHUZWAYO AJ

INTRODUCTION

[1] This is an application in terms of section 145 of the Labour Relations Act, number 66 of 1995 (LRA) to review and set aside the arbitration award issued by the Third Respondent (the Arbitration) under the auspices of the Fourth Respondent, the Education Labour Relations Council General, case number ELR 597-20/21 KZN, dated 02 November 2021.

BACKGROUND

[2] The salient background facts in the present application are not in dispute. In May 2009 the Applicant was appointed as a Senior Education Specialist for Infrastructure Management and Services after having served as a school Principal for a period of about ten (10) years.

[3] In 2015 the Applicant was appointed to act as the Deputy Chief Education Specialist for Infrastructure Management and Services. In 2016 she was permanently appointed to the post.

[4] In 2019 she was again appointed to act as the Chief Education Specialist for District Planning and Infrastructure (The post that is in dispute in these proceedings). She acted in this position for a period of eighteen (18) months until it was advertised in HRM Circular No. 38 of 2020. The closing date for the applications was 4 September 2020.

[5] The Applicant applied for the position. She was shortlisted together with the Fifth Respondent and two (2) other candidates. After the interview process of the shortlist candidates, the interview committee recommended the appointment of the Fifth Respondent. The Applicant was aggrieved by the decision of the committee and as a result, she referred the dispute to Arbitration.

ARBITRATION

[6] The Applicant referred the dispute in terms of Section 186(2)(a) of the LRA, unfair labour practice relating to promotion. The Applicant sought the Arbitrator to find that the appointment of the Fifth Respondent was unfair and set it aside and instead appoint her to the position.

[7] The Applicant contended two main grievances before the Arbitrator:

[a] That the Fifth Respondent should not have been even shortlisted since she did not apply for the post in dispute. (Number OBE/13/2020).

[b] That she was more qualified than the Fifth Respondent and that she had been acting in the position for a period of about eighteen (18) months immediately prior the interviews.

[8] In dealing with the allegation that the Fifth Respondent did not apply for the post, the Applicant identified the number and type of the applications for which the Fifth Respondent applied, from the register that was signed by all walk-in candidates for various posts when they submitted their applications.

[9] The register contained the date of the submission of the application, the initials and surname of the candidate, the reference number of the posts for which applied and the signature of the candidate. The register was contemporaneous in that it was written in manuscript as each candidate had to enter his or her details at the time of submission of the application. Mrs Luthuli the Deputy Director in the employ of the Second Respondent was the custodian of the register.

[10] In terms of the register, the Fifth Respondent submitted applications for seven (7) posts. However, post number OBE/13/2022 does not appear on the register as one of the posts for which she applied. The Applicant contended that was clear proof that the Fifth Respondent did not apply for the post in question.

[11] However, Mr Ndlovu for the First and Second Respondents denied these allegations. He drew the attention of the Arbitrator to alterations on some of the references of the applications that were submitted by the Fifth Respondent. He testified that after having been alerted to the alterations he was advised by Mrs Luthuli that her intern had advised her that the Applicant had at a point arrived at her office and was handed the register after having requested to see it. According to her the intern was unable to confirm what the Applicant wanted to do with the register.

[12] Even though Mr Ndlovu did not explicitly make the allegation but clearly he was insinuating that the Applicant interfered with the register and made alterations to the posts that were submitted by the Fifth Respondent.

[13] In support of her submission that she was more qualified than the Fifth Respondent, the Applicant submitted that she was more experienced in infrastructure than the Fifth Respondent and that in any event, she had been acting in the position for a period of 18 months immediately prior the interviews.

[14] The Arbitrator dismissed the Applicant’s application mainly on the basis that the Applicant had no right to promotion in the ordinary course but only a right to be given a fair opportunity to compete for the post. However, and most significantly the Arbitrator did not deal with the Applicant’s contention that the Fifth Respondent did not apply for the posts. The Arbitrator simply ignored the evidence presented in this regard. Dissatisfied with the Award of the Arbitrator, the Applicant instituted the current Review.

THE REVIEW

[15] As I have above outlined the Applicant seeks an order that her non-promotion was both procedurally and substantively unfair and as such the First and Second Respondents committed an unfair labour practice. She also seeks an order setting aside the promotion of the Fifth Respondent and instead replacing it with her promotion.

APPLICABLE LAW

[16] I have to deal with the grounds for review within the context of the test this Court must apply in deciding whether the Arbitrator’s

decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] as to whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach. The Constitutional Court held that the Arbitrator’s conclusion must fall within a range of decisions that a reasonable decision-maker could make.

[17] In Herholdt v Nedbank Limited[2] the test for review was emphasized as follows:

“In summary, the position regarding the review of CCMA awards is this. A review of a CCMA award is permissible if defect in the proceedings

falls in one of the grounds of section 145(2)(a) of the Labour Relations Act. For a defect in the conduct of the proceedings to amount to gross irregularity as contemplated by Section 145(2)(a(ii), the Arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. 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 attached to a particular fact are not in and of themselves sufficient for an award to be set aside but are only of any consequence if the effect is to render the outcome unreasonable.”

[18] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[3] affirmed the test to be applied in review proceedings and held that:

“In short: A reviewing court must ascertain whether the Arbitrator considered the principal issue before him/her; evaluated the facts

presented at the hearing and came to a conclusion that is reasonable.”

[19] In Quest Flexible Staffing Solutions (Pty) Ltd v Lebogate, the LAC[4] confirmed the test to be applied on review:

“Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”

[20] The Court also held that, in considering the review, the review Court is not required to consider every factor individually and how the Arbitrator treated and dealt with each of those factors and then determine whether a failure by the Arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court

must consider the totality of the evidence and then decide whether the decision made by the Arbitrator is one that a reasonable

decision-maker could make.

[21] Section 186(2)(a) defines an unfair labour practice as any act or omission that arises between an employer and an employee, involving unfair conduct by the employer relating to the provision of benefits to an employee. It is trite that a promotion for the purpose of Section 186 (2)(a) involved a move by the existing employee to a higher rank or position which carries a greater status and responsibility.

[22] An employee may challenge his or her failure to be promoted with reference to the procedure adopted in making a determination on

whether to promote or not and the reasons for failing to promote him or her. It is trite that the onus in establishing the existence of an unfair practice for the purpose of Section 186(2)(a) rests on the Applicant. In Department of Justice v CCMA and Others[5] the Court held that: -

“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such a decision or conduct. If the decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair then can follow”

ANALYSIS

[23] This matter was previously set down for hearing on 8 March 2023, however, it was adjourned for the First and Second Respondents to table a settlement proposal. However, the matter was adjourned after the First and Second Respondents’ counsel consented to the review and setting aside of the arbitration award. However, notwithstanding the concession he submitted that the court should no find that the Second Respondent committed an unfair labour practice. I will come back to this point.

[24] In my view the First and Second Respondents’ counsel correctly conceded that the Arbitrator’s award is reviewable and ought to be set aside. I say this for various reasons. As stated in the matter of Quest Flexible Staffing Solutions (Pty) Ltd v Lebogate supra, I need not deal with all the grounds of review as set out by the Applicant, especially in the current circumstances where the First and Second Respondents counsel consented to the setting aside of the award. I will however only deal with two grounds of review which in my opinion are important.

[25] In my view the contention that the Fifth Respondent did not apply for the post in which she was appointed was a pivotal issue at the arbitration. I say so for the obvious reason that, in the event that the Arbitrator upheld this contention, the Applicant would have proved unfair labour practice relating to promotion. It is indeed grossly irregular that in his ruling the Arbitrator completely ignored the issue. He simply ignored the crucial evidence that was presented on the issue.

[26] In my view the absence of the Fifth Respondent’s name on the register in which all candidates were made to sign on submission of their applications as proof thereof, constituted enough evidence that the Fifth Respondent did not apply for posts number OBE/13/2020. There was clearly no proof whatsoever that she indeed submitted the application by the closing date of 4 September 2020.

[27] As I have above outlined the chairperson of the interview committee, Mr Ndlovu attempted to explain or justify the absence of the Fifth Respondent’s name from the Fifth Respondent’s name from submission Register. In his attempt he made incomplete insinuations that were riddled with hearsay. His explanation simply lacked credibility and could not reasonably be believed. It was just conveniently too coincidental that the Applicant would have requested to inspect the register at a time and in the manner that Mr Ndlovu described. In any event I am unable to understand the import of his insinuation as he did not make any specific allegation as to which number was altered and to which number and for what purpose. It was just a generic insinuation of alterations of about five (5) entries.

[28] I have no difficulty in rejecting his allegations in this regard as patently false. I am also amazed that the Fifth Respondent did not testify at the arbitration in order to explain the circumstances under which her name did not appear from the register of the submitted applications. I believe that it was in her best interest to so testify In my view the Arbitrator committed gross irregularity by ignoring such crucial evidence/ or lack thereof that was presented before him.

[29] On this point alone the Arbitrator should have found that the Second Respondent committed unfair labour practices relating to promotion.

[30] In the First and Second Respondents’ Answering Affidavit before Court, Mr Ndlovu attempted to disassociate himself from the Register to which he testified at the arbitration, and which formed part of the First and Second Respondents’ bundle of documents. He made the allegations that the typed document attached to the Answering Affidavit as annexure “PDN1”, which bears the name of the Fifth Respondent as one of the candidates who applied for post number OBE/13/2020, was the only one of the candidates who applied for post number OBE/13/2020, was the only authentic Register that was kept by the Second Respondent. Mr Ndlovu did not explain the reason for the sudden appearance of the Fifth Respondent’s name in “PDN1” as one of the candidates who applied for the post and why was it not referred to at the arbitration.

[31] Mr Ndlovu’s conduct in this regard is reprehensible as it is clear that “PDN1” was manufactured post facto with the sole intention to mislead and portray the false impression that the Fifth Respondent was one of the candidates who duly applied for the post.

[32] One of the grounds for review is that the Fifth Respondent was not even supposed to have been shortlisted since her application was incomplete since she did not attach her matric certificate on her application.

[33] The issue of the matric certificate was not before the Arbitrator but was only discovered after the Rule 7(5) Notice of the Labour Court Rules.

[34] All candidates who applied for various posts were required to attach their qualification certificates on their applications. This was one of the standard requirements for a fully completed application form. The Fifth Respondent did not attach her matric certificate to the application that was purported to have been submitted before the closing date of 4 September 2020.

[35] In an attempt to justify this deficiency the First and Second Respondents offered various explanations, firstly that the matric certificate was not a requirement for the post, secondly that she attached the matric certificate in her application bearing her maiden name, and thirdly that the matric certificate in her application was that of her husband.

[36] All these explanations have no merits whatsoever. The matric certificate was indeed a requirement for the post as all candidates were required to attach their qualification certificates on their applications. The certificate was also not in her maiden name as the first names are clearly not that of the Fifth Respondent. The First and Second Respondents’ explanations are clear evidence that the Fifth Respondent did not attach her matric certificate on her application which was a requirement for a fully

completed application. I therefore agree that even if the Fifth Respondent did apply for the post, which she did not, her application

should not have even been considered as it was incomplete and therefore she should not have been shortlisted from the first place.

[37] With all the above I have no difficulty in finding that the Arbitrator committed gross irregularity and the award ought to be set aside.

[38] Counsel for the First and Second Respondents argued that even if the Award is set aside, the court should not substitute the decision of the Arbitrator but only remit the matter back to the Fourth Respondent for reconsideration, he argued that the Court is not in position or does not have enough information to make the determination whether indeed the Second Respondent committed unfair labour practice relating to promotion.

[39] Section 145(4)(a) of the Labour Relations Act provides that if an arbitration award is set aside the Labour Court may determine the dispute in the manner it consider appropriate. That expressly gives the Labour Court wide powers that include substituting its decision for that of a CCMA commissioner. In Sajid v Mahomed N.O.[6] the Court held that the terms of Section 145(4)(a) “give the court the widest possible powers necessary for it to determine a dispute in whatever manner the court ‘considers appropriate’. See Palluci Home Depot (Pty) Ltd v Herskowitz[7] where the need for expeditious resolution was emphasized as an important consideration in favour of substitution. Also see Boxer

Superstores (Pty) Ltd v Zuma[8].

[40] In Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another[9] it was stated that:

“To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively. Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances.”

[41] In my view, this Court is in as good position to substitute the Arbitrator’s ruling. The submission register as was presented before the Arbitrator is unambiguous that the Fifth Respondent did not submit her application before the closing date of the applications. The name of the Fifth Respondent does not appear from the submission register and there was no credible explanation from the First and Second Respondents. Even the Fifth Respondent herself did not testify at the Arbitration in order to explain why her name was not on the register. In my view, if she indeed applied for the post she would have felt compelled to testify and offer her version of the events.

[42] As I have above outlined, the dispute as to which is the official register was only belatedly raised in these proceedings with only the intention to mislead this Court. There is therefore no genuine dispute which can prevent this Court from substituting the Arbitrator’s award. It will cause an unnecessary delay to remit the matter back to the Fourth Respondent. The Court has sufficient information to substitute the Arbitrator’s ruling.

[43] The Applicant’s counsel argued that in the event that the Court finds that the First Respondent committed unfair labour practice

relating to promotion, the Court should order the retrospective appointment of the Applicant to the post currently held by the Fifth Respondent. In support of the argument he cited two cases i.e, Walters v Transitional Local Council of Port Elizabeth and

Another[10] and Hoffmann v South African Airways[11].

[44] In SAPS v SSSBC, Robertson NO and Noonan (unreported P426/08 – 27 October 2010) at para. 41 Cheadle AJ had summarised the principles relating to promotion as follows:

[a] There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion.

[b] Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.

[c] If the employee is not denied the opportunity of competing for a post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.

[d] The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

[e] Because there is no right to promotion in the ordinary course, the appropriate remedy, as a general rule, is to set aside the decision and refer it back with or without instructions to ensure that a fair opportunity is given. Since the interest is the fair opportunity to compete, it follows that that should be the appropriate remedy rather than appointing the Applicant to the post (or to a post on equivalent terms) or to compensate (there being no loss). There are two exceptions. This principle does not apply to discrimination or victimization cases in respect of which different and compelling constitutional interests are at stake. It also does not apply if the Applicant proves that but for the unfair conduct, she would have been appointed.

[45] The exact similar position was confirmed in Department of Justice v CCMA & others[12] where it was stressed that there is no right to be promoted, but only a right to be treated fairly in the process of promoting or appointing an employee to a post. Again, the normal recruitment and selection requirements, very importantly, the requirement of fairness and objectivity was emphasized.

[46] In Swanepoel v Western Region District Council & Another[13], it was held that acting in a higher position does not confer a right to promotion to that post or grade irrespective of whether the Applicant’s immediate supervisor was impressed with her diligence, trustworthiness and all-round abilities. The exact same position was confirmed in Ga-Segonyana Local Municipality v Venter N.O. and Others[14], and in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others.

[47] Furthermore, in Ga-Segonyana Local Municipality v Venter N.O. and Others supra, it was held that “central to appointments or promotion of employees is the principle that courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions”.

This clearly demonstrates, therefore, that courts and commissioners will not willy-nilly interfere with the employer’s employment

and promotion-related managerial prerogative.

[48] In conclusion, the fact that ‘promotion’ is covered by section 186(2) of the LRA does not, by any means, create a right to promotion. It only implies that an employee (i.e. Applicant for a position) has a right to be fairly considered for a promotion or appointment. In fact, it fundamentally confers a legal right to fair labour practice with respect to appointments and promotions of employees or/officials, which is a right to be treated fairly in the process of promotions or appointments.

[49] With all the above it is clear that notwithstanding finding the First and Second Respondents committed an unfair labour practice relating to promotion, the relief of the Applicant’s retrospective promotion does not necessarily follow. The two cases cited in the Applicant’s heads of argument where the court ordered retrospective promotion are distinguishable from the current one, they relate to an unfair labour practice relating to promotion as a result of discrimination. The Applicant in Walters supra was a white female and the Court found that she was not promoted as a result of her race whereas the Court found in Hoffman supra that the Applicant was discriminated as a result of his positive HIV status.

[50] The current matter does not pertain to discrimination and there is no evidence that even if the unfairness is removed the Applicant would have been promoted. There were four candidates that were interviewed and there was no evidence presented which proved that the Applicant scored more than the other two candidates at the interviews. Basically, the facts of his matter do not constitute an exception in which the Court would be in a position to order the retrospective promotion of the Applicant.

COSTS

[51] The conduct of the First and Second Respondents in opposing the review application is particularly concerning. In my view some of the allegations contained in the opposing affidavit deposed to by Petros Dumisani Ndlovu are deliberate untruths mainly designed to deceive the Court, for example it is clear that annexure PDN1 was manufactured after the facts to include the name of the fifth Respondent as one of the candidates that applied for the post in question. The concessions made by the First and Second Respondents also appear to indicate that they were not genuine in opposing the review application. I am therefore of the opinion that the first and second Respondent should pay the cost of the application.

[52] Accordingly, the following order is made:

ORDER

[a] The Third Respondent’s award under case number ELRC 597-20/21KZN, dated 2 November 2021, is hereby reviewed, corrected and set aside.

[b] The Applicant’s non-promotion was both procedurally and substantively unfair in that the First and Second Respondents committed an unfair labour practice.

[c] The promotion of the Fifth Respondent (SINDISIWE EDITH NGUBANE ) to the post of the Chief Education Specialist for District Planning and Infrastructure is hereby set aside with effect from 01 January 2021 or on any later date on which she officially assumed duties.

[d] The First and Second Respondents are directed to do all that is necessary to facilitate compliance with the order in paragraph (c) above from the date of this order.

[e] The First and Second Respondents are ordered to pay the costs of the application.

Thulani Khuzwayo

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: CM Kulati Instructed by: MHS Attorney Inc Mansion House, 2nd Floor, Suite 250 12 Joe Slove Street Durban Telephone No.: 031 301 0665 Email.: info@mhsattorney.co.za/ haseenah@mhsattorneys.co.za For the First and Second Respondents: VV Lubelwana Instructed by: Office of the State Attorney 6th Floor, Metropolitan Life Building 391 Anton Lembede Street Durban Telephone Number: 031 365 2600 Fax: 031 306 2448 Email: MandiDlamini@justice.gov.za Ref: 35/0012338/2021/H/P14

[1] [2007] 12 BLLR 1097 (CC)

[2] [2007] 12 BLLR 1097 (CC).

[3] [2004] 4 BLLR 297 (LAC) at para 73.

[4] [2015] 2 BLLR 105 (LAC).

[5] [2004] 4 BLLR 297(LAC).

[6] (2000) 21 ILJ 1204 (LC) at para 89.

[7] [2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC) at para 58.

[8] [2008] ZALAC 7; (2008) 29 ILJ 2680 (LAC) at para 10.

[9] 2015 (10) BCLR 1199 CC.

[10] [2001] 1 BLLR 98 (LC).

[11] 200012 BLLR 1365 (CC)

[12] (2004) 13 LAC.

[13] [1998] 19

[14] (JR961/13) [2016] ZALCJHB 391 (11 October 2016).