Ramatswi v South African Local Government Bargaining Council and Others (JR178/14) [2016] ZALCJHB 405 (18 October 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR178/14

Not Reportable

In the matter between:

DISSENTE THOMAS RAMATSWI

Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

COMMISSIONER SIBONGILE KHOZA

Second Respondent

EKURHULENI METROPOLITAIN MUNICIPALITY

Third Respondent

REVO SPIES

Fourth Respondent

Heard: 28 April 2016

Delivered: 18 October 2016

RABKIN-NAICKER, J

[1] This is an opposed review application to set aside an arbitration award issued by the third respondent (the Arbitrator) on the 6 January 2014. The issue in dispute before her was whether the respondent had committed an unfair labour practice relating to promotion by not appointing the applicant to the position of Director Municipal Courts.

[2] The record (including the pleadings) runs to some 1338 pages. The background to the dispute between the parties is set out by the Arbitrator on pages 14 to 15 of her Award. Unfortunately the paragraphs of the Award are not numbered. The relevant paragraphs

read as follows:

“Is common cause that the position Director Municipal Courts was advertised on two occasions, the first time being in 2009 and the

second time in 2011. It is common cause further that no applicant to the post was informed that the 2009 advert was cancelled and why it had been cancelled. It is further common cause that the said silence prompted the applicant to write a letter to find out why the interviews had not been held and that he was then informed that the same had been frozen without being given reasons why the position had been frozen.

It is also common cause that additional minimum requirements were added to the post when the same was re-advertised in 2011. It was the applicant’s argument that these further requirements were added to ensure that the second respondent who according to him the first respondent had been grooming since the inception of the post is appointed. The applicant argued that the second respondent had been groomed by the first respondent since he not only solely acted in the said position from its inception but had also acted in the same when Mahlangu and Mpai resigned and he did so up until the post was advertised in 2009.

It was the applicant’s further argument that when the first respondent realized that despite such acting the second respondent

would not stand a chance of being appointed had the interviews taken place in accordance with the 2009 advert which set the minimum

requirements as Grade 12, MPO Diploma, Knowledge of Justice and NPA Systems, Extensive Relevant Experience and having an LLB Degree and equivalent qualification as an advantage as the second respondent had no relevant qualification, it then froze the said advert.

He on the other hand would have succeeded in terms of the said advert as he had hands on experience in the field of traffic policing and by-law enforcement, had been doing traffic prosecutions, de facto prosecutor in the lower court for three years at the time of advertising of the position. He also possessed a Bachelor of Laws Degree (LLB) and thus obviously possessed the knowledge of the Justice and NPA Systems. He had also successfully completed traffic policing, training and possessed Grade 12. The applicant further argued that he was a preferred candidate in terms of the first respondent’s employment equity policy as the equity plan stipulated that an African be appointed to the position.

It was the applicant’s argument thus that when the position was advertised in 2011 the first respondent added more requirements not only as a weapon against him but also as a shield to justify the second respondent’s appointment. For the said advert had requirements such as minimum level 5 qualification in the field of Accounting Finance; Economics or a National Diploma in Public Finance Management and Administration (SAQA) and relevant experience as well as the following competencies as prescribed in the National Treasury Minimum Competency Framework; Operational Finance Management; Governance, Ethics and Values in Financial Management; Project Management: Legislation, Policy and Implementation and Supply Chain Management.

The applicant argued further that to ensure that the second respondent would be appointed to the position the second respondent in addition to the additional minimum requirements failed to short list him for the 2011 interviews and only shortlisted him after he and objected to being not shortlisted.”

[3] The analysis by the Arbitrator of the first respondent’s evidence is brief and bears recording. The Arbitrator limited same to the following two paragraphs:

“Although the first respondents did not submit closing arguments it was clear from their evidence that it was its case in gist that it did not act unfairly toward the applicant by not appointing him since the applicant had been given a fair chance like all other candidates to compete in the interviews but had failed to secure the highest score whilst the second respondent did just that. The first respondent went on to state that there was nothing wrong with appointing the highest scoring candidate since this was the method that it uses in promoting all its employees.

The first respondent stated that the second respondent was also appointed because he possesses the necessary qualifications. It was also the assertion of the first respondent further that the second respondent was appointed because it was its prerogative who to appoint. Whilst it was the second respondent’s argument that he was appointed because he not only obtained the highest score but also because he had the necessary qualifications as well.”

[4] In the founding affidavits the applicant submits, inter alia[1], that the Arbitrator failed in her duties in that:

“She failed to pay due attention to her work as the Commissioner in that, she could not even correctly and accurately articulate on the correct facts (documentary and oral evidence, appropriate inferences and the law) presented during the arbitration proceedings and ultimately, by means of written submission submitted on my behalf.”

[5] The Award under review records that the applicant had legal representation throughout the arbitration and that both parties led evidence through witnesses. The Arbitrator then proceeds to record what she refers to as the ‘versions’ of the witnesses who gave testimony before her. There is no reference to cross-examination or what cross-examination elicited from either side in her summary of the versions. What follows after the ‘versions’ are set out, is the Arbitrators view on the matter, arising from her understanding of the versions she has recorded. This section of the Award does contain reference to testimony elicited under cross-examination.

[6] A look at the transcript of the proceedings reflects that the applicant’s cross-examination is recorded from page 365 to page 742. The task of a reviewing court is made harder by the failure of an Arbitrator to properly summarise the evidence before her. The Labour Courts’ review jurisprudence eschews a piecemeal approach [2] to the review of arbitration awards, and requires that a review court consider whether despite gross irregularities having been committed, the result of the Award is reasonable or not. This approach does not mean that it is acceptable for an Arbitrator to draft an unstructured award. A structured and reasoned arbitration award in line with relevant guidelines issued by the CCMA from time to time, should never be undervalued. With a well- structured award in hand, the court is better assisted to consider, even in the face of a voluminous record, whether the outcome of that Award is within the bounds of reasonableness.

[7] Having read the record, I highlight two examples of the applicant’s testimony under cross-examination which are reflective of his case at arbitration. In relation to the scores he received from the interviewing panel for the post, the following:

RESPONDENT REPRESENTATIVE: And uh somewhere along the line the questions that were there are going to be reflected in this hearing…(inaudible) fact you didn’t score well.

MR DESENTE THOMAS RAMATSWI: I score very well.

RESPONDENT REPRESENTATIVE: The best.

MR DESENTE THOMAS RAMATSWI: The best.

RESPONDENT REPRESENTATIVE: Why do you say so?

MR DESENTE THOMAS RAMATSWI: I perform very well in the interview.

RESPONDENT REPRESENTATIVE: Why do you say…

MR DESENTE THOMAS RAMATSWI: …(Inaudible) the question.

RESPONDENT REPRESENTATIVE: You did not answer the question.

MR DESENTE THOMAS RAMATSWI: I did.

RESPONDENT REPRESENTATIVE: Mr Ramatswi the 3 panellists all 3 of them scored you second worse out of 9.

MR DESENTE THOMAS RAMATSWI: I dispute it.

RESPONDENT REPRESENTATIVE: Why?

MR DESENTE THOMAS RAMATSWI: Because I perform well.

RESPONDENT REPRESENTATIVE: You did not.

RESPONDENT REPRESENTATIVE: Why would Friedlander lie?

MR DESENTE THOMAS RAMATSWI: I don’t know.

RESPONDENT REPRESENTATIVE: Why would Chief Msimang lie?

RESPONDENT REPRESENTATIVE: Why would Rita Kennedy lie?

RESPONDENT REPRESENTATIVE: They don’t lie 3 independent people scored you second worst now do you seriously, seriously want to tell me why you say Friedlander lied? Your answer yes?

MR DESENTE THOMAS RAMATSWI: I don’t know if that is correct I don’t belief that.

RESPONDENT REPRESENTATIVE: Where in their scoring?

MR DESENTE THOMAS RAMATSWI: I don’t belief it.”

[9] On the issue of the first advertisement for the post, which did not lead to any appointment, and the unfairness claimed by the applicant in that he was not informed of this, the record reflects the following exchange when the applicant was asked to read out the advert:

“RESPONDENT REPRESENTATIVE: Just read that.

MR DESENTE THOMAS RAMATSWI: Should candidates not be informed of the outcome of the application within six weeks of the closing date they should regard their application as being unsuccessful.

RESPONDENT REPRESENTATIVE: Is there anything wrong with the employer not informing you?

MR DESENTE THOMAS RAMATSWI: If I ask then I need to be informed……..

RESPONDENT REPRESENTATIVE: You were not informed. Now my question is, did the employer do anything wrong in not informing you after 6 weeks?

MR DESENTE THOMAS RAMATSWI: I am an employee I think they must.

RESPONDENT REPRESENTATIVE: Mr Ramatswi don’t evade the question. What about a person that is not an employee?

MR DESENTE THOMAS RAMATSWI: Yes

RESPONDENT REPRESENTATIVE: It did something wrong?

MR DESENTE THOMAS RAMATSWI: Yes

RESPONDENT REPRESENTATIVE: What did it do wrong?

MR DESENTE THOMAS RAMATSWI: By not informing me..”

[10] The above examples and the record as a whole support the conclusions drawn by the Arbitrator in her ‘analysis of evidence and argument’. Much of the applicant’s case was premised on the notion that his employer was conspiring to keep him out of the post. This had no basis in fact. He was given an opportunity to be interviewed for the position, after complaining through his union that he had not been shortlisted. He blankly refused to accept that his scores were correctly recorded by the panel of three, which included senior officials. He persisted in the belief that having an LLB made him the preferred candidate although the post required financial and managerial skills for which he did not have the relevant qualifications.

[11] This court is satisfied that the Award, while not well structured, is not susceptible to review. The arbitrator did not misconstrue the nature of the enquiry before her, or arrive at an unreasonable result. As the Labour Appeal Court stated in Palluci Home Depot (Pty) Ltd v Herskowitz & others[3]

“[16] Significantly, as was held by the SCA in Herholdt and endorsed recently by this court in Head of the Department of Education v Mofokeng & others, 'for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii) of the LRA, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result'. Thus, as recognised in Mofokeng, it is not only the unreasonableness of the outcome of an arbitrator's award which is subject to scrutiny, the arbitrator 'must not misconceive the enquiry or undertake the enquiry in a misconceived manner', as this would not lead to a fair trial of the issues. In further approval of Herholdt, this court in Mofokeng stated that:

'Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on 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. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.' [4]

[12] In view of the above, the application stands to be dismissed. I do not intend to make any order as to costs given the relationship that persists between the parties and taking into account that the applicant is an individual employee. I therefore make the following

order:

Order

1. The review application is dismissed.

____________________

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Appearances:

Applicant: MV Mangwale

Third Respondent: N. Rali Ralikuvhana

[1] All other review grounds set out in the lengthy pleadings fall under this rubric

[2] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC)

[3] (2015) 36 ILJ 1511 (LAC)

[4] At paragraph 16