Nene v National Commissioner of Police Services and Others (D431/20) [2024] ZALCD 34 (19 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not reportable

Case No: D431/2020

In the matter between:

N D NENE Applicant and NATIONAL COMMISSIONER OF POLICE SERVICES First Respondent MINISTER OF POLICE Second Respondent A DORASAMY N.O Third Respondent SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL Fourth Respondent M.P DLOMO Fifth Respondent

Heard: 25 June 2024

Delivered: 19 September 2024

JUDGMENT

MHLONGO, AJ

Introduction

[1] The Applicant brought an application to review and set aside an award issued by the Third Respondent, the Arbitrator in the dispute before the Bargaining Council (the arbitrator). The review was opposed by the First and Second Respondents. For ease of reference, the First Respondent will be referred to as the “SAPS” or the “employer”.

Background facts

[2] The Applicant was employed by the SAPS holding the rank of Lieutenant Colonel and was stationed at Richards Bay Detective Branch when the dispute arose.

[3] On or about the 25th of July 2021, the employer issued an internal advertisement of various positions in KwaZulu-Natal including the post in dispute under reference number 6/07/2011, position of Colonel Section Commander Richards Bay, Detective Service, Salary level 12 MMS Band, Remuneration R465 183 per annum.

[4] The Applicant was previously acting as the Station Commander Richards Bay, Detective Service. The Applicant applied for the position, was shortlisted and interviewed on 28 September 2011. The Applicant was not successful in the interview; he was number four and was not appointed by the employer.

[5] The Applicant retired from the service on 30 September 2018 and therefore is now seeking protected promotion. The Applicant referred the dispute to the Bargaining Council vide case number PSSS 769-12/13.

Arbitration Proceedings

[6] At the arbitration hearing the Applicant testified that he applied for the post, was shortlisted, interviewed and scored the fourth

highest mark of 58,13%. He further stated that the highest scoring candidate was the Fifth Respondent.

[7] The Applicant submitted that the procedural and substantive aspects of the process of the employer was flawed as three candidates who scored above him should not have been shortlisted especially candidates 1 and 2, they should have been rejected in terms of the policy as per national instructions.

[8] The Applicant further testified that the employer’s selection panel acted unfairly, arbitrary, capriciously and in bad faith and did not apply the policy objectively and in an unbiased manner.

[9] The Applicant testified that he sought protective promotion with salary between Lieutenant Colonel level 10 and level 12 MMS Band to 30 September 2018 and benefits from 1 May 2012 as it impacts on his exit benefit package.

[10] The First Respondent stated that the employer has the prerogative as to whom it needs to promote, and it was not done in an arbitrary and fair manner. The employer stated that the right person was appointed for the post and that due process was followed, and it was fairly done. The employer stated that the application be dismissed.

Legal principles and Analysis

Observation of the award and evidence

[11] Having perused the pleadings, the records and the submissions, I wish to highlight a few observations made. The generic minimum requirements applicable to the posts are as follows:

“Competency in the post specific core functions and proven managerial experience in the field of the advertised post. Fluent in two of the official languages, of which one must be English. Senior certification or equivalent NQ4 qualification is compulsory. A valid light motor vehicle driver’s licence. Applicant with relevant courses in the environment will receive preference. Communication and interpersonal skills. Must be computer literate.”

[12] The definitions of “core functions” refer to the main duties attached to a post which differentiates the post from another. The term minimum standard refers to the inherent requirements which must be met by an applicant and includes the skills, knowledge, training, qualifications and personal attributes that are required for a specific post.

[13] Clause 4.1 a-d reads as follows:

“An application for a vacant post MUST:

(a) Be submitted on the form determined by the National Commissioner and the form must be properly completed and signed by the Applicant;

(b) be received at the appropriate office before or on the specified closing date;

(c) clearly indicate which posts is being applied for;

(d) contains sufficient information showing that the Applicant meets the requirements of the posts and;

(e) be accompanied by the necessary documentary proof that the applicant meets the requirements of the post.”

[14] Clause 4(2) reads as follows:

“An application that does not comply with the requirements set out in

subparagraph 11 MUST be rejected.”

[15] Clause 7(3) of the selection process reads as follows:

“The chairperson must ensure that records are kept of all the proceedings during the interview and other meetings of the selection panel as well as of every decision made and the reason(s) for such decisions.”

[16] Clause 8(4) reads as follows:

“Written records of all the proceedings during the selection process must after completion of the process be retained in the relevant division or province for safe keeping for 3 (three) years.”

[17] Clause 10(1)(a) reads as follows when conducting interviews the panel must:

(a) put similar questions to each candidate. Information on a particular candidate may not be considered if the information is not put to the candidate during the interview.”

[18] Clause 12(1) which deals with recommendations by a selection panel:

“a selection panel must after having completed the evaluation of candidates make a recommendation on their first and second choice for the post and cite the reasons for their decision.”

[19] The Applicant stated the Affidavit of Bhekizitha Ruphas Thwala that was signed at Empangeni on the 11th of August 2011 and commissioned on the 12th of August 2011 at Esikhawini which are different dates and places, should have been rejected by the panel both Dlomo and Thwala should have been rejected.

[20] The Applicant testified that the interviews were done on 5 October 2011, he believed that he answered perfectly, he was thanked by the Panel and further stated that no-one told him that he answered well but he saw them nodding their heads. The Panel stopped him because he had answered enough.

[21] The Applicant also testified that on page 11 of the preference list for experience, he got 6, the Fifth Respondent scored a 6.3 for competence and Dlomo scored a 7.02 and he also scored a 5.44. There was no record on how the scoring was done and believed that he should have scored the highest.

[22] He further testified that on page 11 the Fifth Respondent was recorded as the candidate to address equity and service delivery, but no reasons were given.

[23] He testified that he was the Acting Branch Commander when the post was advertised.

[24] The employer did a cross-examination to test the Applicant’s testimony during the trial. The employer failed to bring witnesses to testify and therefore the only evidence at my disposal is the documentary evidence. The employer was present during the arbitration process from its inception until it was finalised.

Grounds for review and analysis

[25]

In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] the Court held that the appropriate test to be applied in relation to the review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) or Bargaining Council is whether the outcome is one which no reasonable Commissioner could reach with the material before him or her.

[26]

The Sidumo test has since been refined. In the case of Department of Education v Mofokeng and Others[2] the Court held that:

“Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or errors is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute.”

[27] With that in mind, I now turn to the grounds of review. In this matter the Applicant submitted that the Third Respondent’s analysis of the evidence in his award reached a finding that the First and Second Respondent’s conduct in not promoting him was both procedurally and substantively unfair and this conduct amounted to an unfair labour practice namely that:

“39. On the applicant’s version it is clear that he met the requirements for the position and acted in the position longer than the appointee and had more experience than her …. Further the applicant challenged the selection panel’s application of the National Instruction without rebuttal from the first respondent. The first respondent did not provide written notes of the proceedings, nor did the chairperson provide a record of the decisions and the successful candidate Ms Dlomo and Mr Thwala’s application ought to have been rejected. There was no equity plan and no reasons given for the service delivery requirement. I must therefore find that the first respondent acted procedurally unfairly in that it did not appoint the applicant.”

“40. I must find the first respondent acted substantively unfairly in that they appointed Ms. Dlomo whose qualifications for the post was challenged but not rebutted.”[3]

[28] After accepting the Applicant’s version, the Third Respondent concluded that the First and Second Respondent committed an unfair labour practice both procedurally and substantively. The Third Respondent thereafter in his award after making a finding of procedural and substantive unfairness commences on to the remedy and the powers of an arbitrator, as follows:

“42. Further I have noted that according to the LRA, the compensation awarded to an employee in respect of unfair labour practice dispute

must be just and equitable in all the circumstances, but not more than the equivalent of 12 month’s remuneration. The remuneration upon which compensation must be based referred to in section 194 (4) of the LRA is defined in the LRA as “any payment in money or in kind … made or owing to any person for that person working for another person, including the state … (section 213 of the LRA). In promotion disputes the remuneration upon which compensation must be based, must be the remuneration of the job in which the employee is currently appointed and not the promotion job for which the employee has applied.”[4]

[29] The Third Respondent committed an error of law in respect of the remedies that an arbitrator can award in respect of an unfair labour practice is limited to not more than 12 months remuneration and further the compensation must be calculated on the appointee’s

current remuneration and not the promotion job that he has applied for.

[30] The Third Respondent misconstrued the relief he was seeking and failed to consider that an arbitrator’s powers in respect of what relief can be awarded are much wider in unfair labour practice disputes which have been confirmed by several case authority that would have been argued at the hearing of the matter.

[31] The courts have found that protective promotion is an equitable remedy in an unfair labour practice in non-promotions. He was advised

that a protected promotion award by an arbitrator does not interfere with the promotion of the incumbent in the post. It does not usurp the decision of the national commissioner: his decision to promote remains intact. What it does is provide an equitable remedy for the employee whose appointment was thwarted as a result of the way the appointment process was conducted. Protective promotion ensures that the tangible and quantifiable benefits of a promotion that the Applicant deserved are properly compensated for by the arbitrator’s award.

[32] The Applicant was advised that the Third Respondent failed to exercise his power to determine an unfair labour practice dispute as per the provisions of section 186(2)(a),191(5)(a)(iv) and 193(4) of the Labour Relations Act[5] (LRA). These provisions seek to give practical effect to the constitutional right to fair labour practices set out in section 23(1) of the Constitution for the Republic of South Africa, 1996. The first and second Respondent’s unfair labour practice conduct in not promoting the Applicant and its lack of jurisdiction of the scores clearly showed that if it was not for the unfair conduct he would have been appointed to the post. The number of postponements by the first and second Respondents proved that it had no case to oppose his averments of gross unfair, improper and arbitrary conduct.

[33] The Applicant had proven that, but for the irregularities and unfairness in the scores against the First and Second Respondents own scoring criteria, the lack of jurisdiction and reason by the First Respondent’s and Second Respondents functionaries, the Applicant was the most superior, qualified in terms of the inherent core requirements of the post to the successful candidate and ought to have been promoted. The Third Respondent confirmed such in his award at paragraphs 39 and 40 of his award that the conduct of the First and Second Respondent was both procedurally and substantively unfair but misconstrued the remedies that were available to the Applicant in an unfair labour practice dispute in a non-promotion dispute.

[34] The Third Respondent came to the wrong conclusion in this regard, evaluated the evidence before him in an irrational and unjustifiable

manner and doing so committed a reviewable irregularity and reached a decision that no reasonable decision maker could have reached in light of the evidence before him.

[35] In the award, the arbitrator failed to pay attention to the evidence that in the case of unfair labour practices, the arbitrator’s powers are much wider and confined himself to the compensation of not more than 12 months which is irregular.

[36] I am persuaded that the arbitrator failed to apply his mind on what evidence to consider when dealing with protected promotion where there would be no interference with the decision of the First Respondent to appoint the incumbent.

[37] I failed to find a reason as to why the Applicant was not granted promotion after carefully applying my mind in the arbitration award as well as all pleadings before me.

[38]

I am persuaded by the decision of the Supreme Court of Appeal in Gordon v Department of Health[6] stated as follows in respect of protective promotion:

“4. He claimed protective promotion, by way of relief, with effect from 1 June 1996, the date on which he contended he should have been appointed. Protective promotion is described in paragraph 9(1)(c), part B.VI/III of the Public Service Commissioner Staff code as follows:

‘Protective promotions are effected on the recommendation of a Commission to protect the position of officers and employees … who are found to have been prejudiced in the filling of a promotion post after such a post had been filled.’ This in essence amounts to providing all the benefits of the promotion post to one employee without actually appointing him thereto with the consequence that the appointment of another employee to that post remains intact.”

[39]

I am persuaded that the arbitrator understands the correct legal principles to remedies available to unfair labour practice of

non-promotion dispute and therefore I am further persuaded by the decision of this Court in Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [7] where Van Niekerk J held as follows:

“The LAC and this Court have held that they should correct a decision rather than refer it back to the CCMA for a hearing de novo in the following circumstances: (i) where the end result is a foregone conclusion, and it would merely be a waste of time to order the CCMA to reconsider the matter; (ii) where a further delay would cause unjustified prejudice to the parties; (iii) where the CCMA has exhibited such bias or incompetence that it would be unfair to require the applicant to submit to the same jurisdiction again; or (iv) where the court is in as a good position as the CCMA to make the decision itself.”

[40] I have further taken into consideration the submission by the employer that the arbitrator committed gross irregularities by failing to consider available evidence that was before him, but the employer failed to file the cross review in this matter and secondly, the employer failed to present its case to the arbitrator.

[41]

I am also persuaded by the decision in the case of Assmang Limited (Blackrock Mine) v De Beer and Others[8] where the court held that:

“No matter how crucial or self-evidence a document may seem to be, can only have evidentiary value relevant to the extent to which they are contextualised by a witness who talks to the document in question.”

[42] I am persuaded that during the cross examination of the Applicant the First Respondent should have built up his case by placing the versions of its witnesses of which I failed to find in the record.

[43] The evidence before this Honourable Court was that the arbitrator postponed the matter which resulted to seven postponements i.e. 14 September 2018; 7 December 2018; 4 March 2019; 11 June 2019; 29 October 2019; 27 February 2020 and 24 July 2020. In all these postponements the employer failed to bring witnesses. Secondly, the issue of awarding cost against the employer did not yield the result.

[44] I am not persuaded by the submission of the employer that the arbitrator erred in refusing postponement based on previous postponements. The arbitrator refused postponement because the employer did not submit a medical certificate and an affidavit from the doctor that Colonel Gama was indisposed and furthermore the Applicant argued that there were no witnesses to persuade the arbitrator that the employer was prepared to proceed with the case.

[45] I failed to faulter the arbitrator on the issues raised by the employer.

[46] The Applicant testified that the arbitrator must grant protective promotion to the rank of Colonel from the promotion date being 1 May 2012 to the date of his superannuation being 30 September 2018 to the post of MMS band post number 6/07/2011 Section (Branch) Commander Detectives Richards Bay.

[47] In the case of Department of Education v Mofokeng and Others[9] the Court held that:

“[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of the case will usually be an irregularity … before such an irregularity will result in the setting aside of the award it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31] …. examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis,

reasoning or effect of the decision ... The Court must nonetheless still consider whether apart from the flawed reasons of or any

irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome, which is subject to scrutiny …

the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.

[32] …. Review is not permissible on the same grounds that apply under PAJA. Mere errors of facts or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance or irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result … a misconceived inquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.

[33] …. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity of error is material and must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues...”

[48] I am persuaded that the applicant be granted fiscal and benefits to be paid retrospectively from the promotion date being 1 May 2012 to the date of the applicant’s superannuation being 30 September 2018, the difference in salary and benefits from level 10 to level 12 with interest at the prescribed legal rate circulated from the date on which each monthly salary payment difference became due until date of payment.

[49] I have applied my mind on the issue of cost on behalf of the applicant. I have looked into the nature of the dispute as well as the conduct of the employer in the dispute. I am not persuaded that the applicant is entitled to the cost order.

Conclusion

[50] I conclude that a protected promotion is a remedy awarded to employees who

successfully prove that they ought to have been promoted but due to unfair labour practice he or she was overlooked by the employer.

[51] While the court papers filed by the employer were taken into consideration and I have also had the benefit of the closing arguments from the employer, I have no doubt that the arbitrator considered all the facts before him.

[52] The Applicant and the employer presented the Court with a complete record of the arbitration. Though cognisant that the LRA requires that administrative tribunals such as the Bargaining Council and the CCMA, must determine the fairness of the dispute, I can not ignore one of the primary objects of the LRA- the expeditious resolution of labour disputes. In the circumstances a remittal would undermine the effectiveness of this dispute.

[53] In the circumstances the following order is made:

Order

1. The arbitration award issued by the Third Respondent is reviewed and set aside.

2. The arbitration award under case reference number PSSS769-12/13 is replaced with an order that:

“1. the applicant is granted protective promotion to the rank of Colonel from the promotion date being the 1st of May 2012 to the date of the applicant’s superannuation being the 30th of September 2018 to the post MMS Band post number 6/07/2011 Section (Branch) Commander Detectives Richards Bay.

2. that the applicant be granted fiscal and benefits to be paid retrospectively from the promotion date being 1st of May 2012 to the date of the applicant’s superannuation being the 30th of September 2018, the difference in salary and benefits from level 10 to level 12 with interest at the prescribed legal rate calculated from the date on which each monthly salary payment difference became due and until date of payment.”

3. There is no order as to costs.

E.T Mhlongo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Naidoo Law Firm (ANLF) Ms. Nirvana Singh of Angeni For the First and Second Respondents: (State Attorney KwaZulu-Natal) Mandisa Dlamini

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

[2] [2015] 1 BLLR 50 (LAC) at para 33.

[3] Arbitration Award p. 9 at para 45.

[4] Arbitration Award at paras 41 to 44.

[5] No. 66 of 1995.

[6] (2008) 29 ILJ 2535 (SCA) at para 4.

[7] (2010) 31 ILJ 452 (LC) at para 33.

[8] (JR948/14) [2017] ZALCJHB 78 (28 February 2017) ) at paras 3 and 8.

[9] Id fn 2 at paras 30 – 33.