Police and Prison Civil Rights Union (POPCRU) Obo Mahlangu K.T. v General Public Service Sectoral Bargaining Council and Others (JR 2820/18) [2022] ZALCJHB 22 (18 February 2022)

IN TEH LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2820/18

In the matter between

POLICE AND PRISON CIVIL RIGHTS UNION (POPCRU)

OBO MAHLANGU K.T. Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

First Respondent

LEONARD VAN LEEUWEN N.O.

Second Respondent

DEPARTMENT OF CORRECTIONAL SERVICES

Third Respondent

GLENDERLYN M SIBEKO Fourth

Respondent

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 18 February 2022

JUDGMENT

MAHOSI. J

Introduction

[1] The applicant brought an application in terms of section 145 of the Labour Relations Act[1] (LRA) for an order to review and set aside an arbitration award dated 24 July 2016, issued by the second respondent (the arbitrator) acting under the auspices of the first respondent, General Public Service Sectoral Bargaining Council (GPSSBC), under case number GPBC 1653/2016.

[2] The application was filed out of time. The degree of lateness is not excessive and having had regard to the pleadings filed as well as the record, I am of the view that the interests of justice require a full

determination of the matter. As such, condonation application is granted.

Background

[3] The applicant’s member (the employee) commenced employment with the third respondent as an educator on the 1st of November 2006 at the Middleburg Correctional Centre on a salary level 6, a position she still occupies.

[4] On 2 August 2015, the third respondent advertised the post of Section Head: Skill Development, Witbank Management Area: Education Department of Correctional Services, both internally and externally. A total of one hundred and twenty-nine (129) people applied for the post. However, only seven (7) candidates were shortlisted and that included the applicant. Of the seven candidates, only six of them were interviewed, as one candidate elected did not attend the interview. However, the employee was unsuccessful in her application.

[5] Dissatisfied with the outcome of the interviews, the employee lodged a grievance of an unfair labour practice for not being promoted to the post of Sectional Head: Skills Development, Witbank Management Area: Educational Department of Correctional Services. The outcome of the grievance was not also in her favour.

[6] Aggrieved with the third respondent's decision, the applicant referred the unfair labour dispute to GPSSBC for conciliation. However, the dispute remained unresolved. As a result, the applicant referred the dispute to arbitration that was heard over a number of days and concluded on 06 July 2018.

[7] On 24 July 2018, the arbitrator issued an award in terms of which he dismissed the applicant’s claim for unfair labour practice. It is this award that is the subject of this application.

Grounds of review

[8] The applicant seeks to review the arbitrator’s award on a number of grounds, which may be summarised as follows:

1. The arbitrator ignored material evidence given by the applicant.

2. The arbitrator misconstrued the test in regard to the unfair labour practice and placed undue requirements instead of dealing with the evidence before him.

3. The arbitrator failed to apply his mind correctly and to exercise his discretion, which resulted in him unreasonably concluded that the employee did not have a degree as she had two outstanding subjects to complete my BEd Honours Degree and totally disregarding the unchallenged evidence before him.

4. The arbitrator exceeded his powers in finding that the employee did not challenge the conduct of the interview panel.

The test for review and evaluation

[9] The decisions on the merits of disputes relating to dismissals and unfair labour practice stand to be reviewed in light of whether they were decisions that no reasonable arbitrator could reach and on the grounds listed in section 145(2) of the LRA. Section 186(2)(a) defines an unfair labour practice as any act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.

[10] It is trite that a promotion for the purposes of section 186(2)(a) involves a move by an existing employee to a higher rank or position which carries greater status, responsibility and authority.[2] The onus to establish the existence of a decision that constitutes an unfair labour practice as provided in section 186(2) rests on the

employee.[3] An employee may challenge his/her failure to be promoted with reference to the procedure adopted in appointing the successful candidate and the reasons for failing to promote him/her.

[11] In casu, the applicant challenged the third respondent's decision not to promote the employee on the basis that she qualified for the position

that she had applied for and further that the selection panel was not properly constituted. In Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others[4] the LAC stated 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 decision or conduct. If that 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 can then follow. This is not one of those cases such as disputes relating to unfair discrimination and disputes relating to freedom of association where if the employee proves the conduct complained of, the legislation then requires the employer to prove that such conduct was fair or lawful and, if he cannot prove that, unfairness is established. In cases where that is intended to be the case, legislation has said so clearly. In respect of item 2(1)(b) matters, the Act does not say so because it was not intended to be so.’ [Footnote omitted]

[12] The question is whether the applicant’s decision not to appoint the employee is one that falls within the definition of unfair labour practice. The applicant has to show that the employee has been overlooked for promotion although she possesses qualifications or experience that the successful candidate does not have and that the applicant cannot explain why she was overlooked. If the said conduct or decision is proven, the enquiry whether the conduct was unfair can then follow. If that decision or conduct is not established, that is the end of the matter.

[13] The applicant’s case was that the employee was more suitable for the position than the fourth respondent in that the latter did not meet the minimum requirements for the post. Further that the selection committee was required to ensure that all candidates comply with the advertisement criteria and that no deviation from the advertisement criteria was allowed.

[14] The advertisement stated that the requirements were a recognised four year Degree in Education and Training with at least 5-7 years experience, training in Educational Management, Training in Labour Therapy, valid drivers licence and computer literacy.[5]

[15] It is apparent from the record and the award that the employee was in possession of the Practitioner Certificate in Adult Education and Training, Diploma in Adult Basic Education and Training, Advanced Certificated in Education Management. She testified that she requires two further courses to obtain her B-Ed Honours Degree and that she did not have experience or a qualification in Labour Therapy Training.

[16] Similarly, the fourth respondent possessed a Bachelor of Arts Degree and Diploma in Higher Education. However, no valid drivers licence was attached to her application nor was an indication that she had the relevant experience required in terms of the advertisement.

[17] Having had regard to the evidence before him, the arbitrator found that there was no evidence that the applicant was more suitable for the position than the fourth respondent. In fact, what is apparent is that she did not meet the minimum requirements when she applied for the position and when she was invited for the interview

[18] The arbitrator further found that despite the fact that she did not possess or meet the minimum requirements, the employee was shortlisted and invited to attend the interviews and thus given an opportunity to compete for the position. Nevertheless, the interviewing panel recommended the fourth respondent as the strongest candidate and Ms D.T. Gumbi was recommended as the second candidate while the third recommended candidate was Ms P.K. Khonziwe.

[19] In addition, the arbitrator found that the applicant failed to show that the employee was more suitable than the second and the third best candidate. It was for the above reasons that the arbitrator found that the applicant failed to prove that the third respondent acted unfairly by not promoting her.

[20] It is apparent from the reading of the award and the record that the arbitrator assessed the submissions made and the documentary evidence placed before him before arriving at his conclusion. It is my view that he was reasonable in his assessment of the evidence before him and reached a conclusion that any reasonable decision-maker could have reached on the probabilities of the versions placed before him.

[21] It follows that the applicant has not established any basis upon which the Court could find that the arbitrator’s award was reviewable. As such, the applicant failed to discharge the onus of establishing that the arbitrator committed a misconduct in relation to his duties, a gross irregularity in the conduct of the arbitration proceedings, or exceeded his powers. It cannot be said that he reached a decision that a reasonable decision-maker could not reach. There is, therefore, no reason for this Court to interfere with his arbitrator’s award.

Costs

[22] With regard to costs, I am of the view that the requirements of law and fairness dictate that there should be no order as to costs.

Order

[23] In the circumstances, the following order is made:

1. The application for an order to review and set aside the arbitration award dated 24 July 2016, issued by the second respondent acting under the auspices of the first respondent, under case number GPBC 1653/2016 is dismissed.

2. There is no order as to costs.

______________________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Advocate K.C. Mthethwa

Instructed by

Chauke Incorporated Attorneys

For the third respondent: Advocate Phefadu

Instructed by State

Attorney

[1] Act 66 of 1995 as amended.

[2] Department of Justice v CCMA and Others [2004] 4 BLLR 297 (LAC); (2004) 25 ILJ 248 (LAC) at 315.

[3] See City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others (2013) 34 ILJ 1156 (LC) at para 19.

[4] (2004) 25 ILJ 248 (LAC) at para 73.

[5] Index to record, volume 3 p 2-3