Rwayi v South African Local Government Bargaining Council and Others (C291/2022) [2023] ZALCCT 63 (20 November 2023)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT CAPE TOWN)

Not Reportable

CASE NO.: C291/2022

In the matter between:

ONKE KNOWLEDGE RWAYI Applicant And SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent COMMISSIONER A SINGH-BOOPCHAND N.O. Second Respondent BITOU MUNICIPALITY Third Respondent JAMES SIJAMA Fourth Respondent

Date of Set Down: 27 June 2023

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 20 November 2023.

JUDGMENT

DE VILLIERS-JANSEN AJ

Introduction

[1] This is an unopposed review application. The applicant, Mr Rwayi, seeks to set aside the second respondent’s (“the arbitrator’s”) arbitration award granted on 19 May 2022 (“the award”). The arbitrator dismissed Mr Rwayi’s claim of an unfair labour practice. He asks that this court substitutes the award with one which it deems appropriate. Alternatively, he asks for the unfair labour practice dispute to be remitted to the first respondent (“the bargaining council”) to be heard afresh before another arbitrator.

Material evidence

[2] Mr Rwayi is employed by the third respondent (“the municipality”). He commenced his employment with the municipality in 2005, as a building inspector. His duties as an inspector included the enforcement of building regulations, scrutinizing building plans, issuing notice of non-compliance, liaising with contractors and other professionals in the building industry. In and during 2011, he moved to the housing department. In this capacity his duties included project planning, initiating, implementing, and closing, and advising the manager human settlements on technicalities.

[3] The municipality invited applications to fill the post of Manager: Facilities Manager and Maintenance (“the post”). The closing date for applications was initially 23 March 2021 (“the closing date”). It was subsequently extended to 7 May 2021. Applicants required relevant tertiary qualifications in public administration or an equivalent NQF level 7 qualification and 5 years relevant experience. In the light of the Mr Rwayi’s complaint, it is useful to describe the functions and responsibilities which the successful candidate was required to perform in full.

[4] The successful applicant would be required to perform the following functions and responsibilities: manage the key performance areas of the division through the implementation of policies, procedures, systems and controls; provide strategic advice on the core functions with respect to the division’s service delivery standards, objectives and development; manage the provisioning and maintenance of parks, cemeteries, sports fields, horticultural, beach control and community centres services; manage, monitor and control operational / capital projects and budget of the division; monitor the implementation of risk management and

supply chain management strategies; manage and control specific statutory legislative requirements with respect to contracts, tenders, licensing, queries and disputes; disseminate information and guidance in relation to performance management of the human capital in the division; render management and line function administrative support services to the division; keep abreast of current trends, legislative changes and technological developments in the relevant industries.

[5] Five applicants were shortlisted for the post and interviewed. The fourth respondent, Mr Sijama scored the highest at 81 percent. Mr Rwayi scored the third highest at 54 percent. The interview panel recommended Mr Sijama’s appointment to the post. Mr Rwayi contends that Mr Sijama ought not to have been appointed. He should have been. He does not dispute Mr Sijama’s tertiary qualifications. He contends that Mr Sijama was appointed to act in the post after the advertisement extending the closing date was placed. He also states that Mr Sijama was employed in the municipality’s communications department and does not have 5 years relevant experience as the advertisement of the post required.

[6] Mr Rwayi construed the advertisement as requiring 5 years relevant experience in the field. These contentions are based largely on his own experience in construction and his perception of what the post requires. He claims that a qualification in public administration is irrelevant and should not have formed part of the requirements for the post. Put differently, Mr Rwayi contends that given the scope of the functions and responsibilities of the post, his experience in construction rendered him the best candidate for the post. And without a qualification in construction, the successful applicant would not be able to deal with the varied functions and responsibilities of the post. In this way, Mr Rwayi distinguishes himself from Mr Sijama.

[7] Mr Rwayi also contended that the recruitment and selection policy distinguished between internal and external advertising of vacant posts. According to him the policy required in the case of a post being substantially the same the vacant post had to be advertised internally first. He contended that post had not been. He based this contention on the fact that the post had been advertised twice. First, with a closing date of 23 March 2021. And again, with a closing date of 7 May 2021.

The post was described in both advertisements in substantially the same terms. Accordingly, Mr Rwayi contended that the municipality failed to comply with its recruitment and selection policy and had failed to lead any evidence as to why the post was

readvertised.

[8] Under cross-examination, Mr Rwayi accepted that the municipality would assess each applicant in the light of the requirements contained in the advertisement and what is stated in the respective curricula vitae. He also accepted that he was shortlisted and invited to an interview. An internal document entitled interviews outcomes report, records that between the two advertisements of the post, 58 applications were received of which 5 were shortlisted. In terms of the report, Mr Rwayi achieved an overall score of 54 percent, whilst Mr Sijama achieved an overall score of 81 percent. Another applicant achieved an overall score of 58 percent. Mr Rwayi, accordingly, achieved the third highest score. He accepted that the outcome of the interview

process and the scores of the shortlisted applicants would constitute the basis for a recommendation to the municipal manager who would decide on the appointment of the suitable candidate to the post.

The award

[9] The arbitrator understood that the dispute concerned an unfair labour practice, particularly that Mr Rwayi was dissatisfied with the process which had been followed to fill the post.

[10] The arbitrator held that the qualification and experience requirements stipulated for the post, were minimum requirements. It is worth noting that Mr Rwayi accepted under cross-examination that these requirements constituted minimum requirements.

[11] The arbitrator found that it was common cause that Mr Rwayi applied for the post, was shortlisted, and interviewed. The arbitrator also found that Mr Rwayi achieved the third highest score and was not appointed. But that Mr Sijama, who met the minimum requirements, achieved the highest score, and that he was appointed to the post. The arbitrator reasoned that the applicants do not compete on the basis that an applicant with the most qualifications and the most experience will be appointed. And that if the process was fair up to the stage of shortlisting, that anyone of the interviewed candidates could be appointed, depending on how they fared during the interviews.

[12] In dealing with Mr Rwayi’s contention that Mr Sijama did not have the requisite experience, the arbitrator considered that the advertisement did not define relevant experience, but that logically, relevant experience would be experience relevant to the job functions and responsibilities. In this regard, Mr Rwayi relied extensively on his experience in the construction industry. Experience which the arbitrator found was not evident from Mr Sijama’s curriculum vitae. However, the arbitrator found that the functions and responsibilities described in the advertisement did not require that the incumbent would have to perform any kind of construction work. It is evident that Mr Rwayi’s reliance on his construction experience was largely influenced by the way he interpreted the responsibilities and functions of the post.

[13] The arbitrator considered that the successful applicant would be performing management functions, provide strategic advice, manage and maintain the community halls and cemeteries, and monitor operational and capital projects. And that objectively, the municipality’s decision to appoint Mr Sijama, did not appear to be arbitrary.

[14] In dealing with Mr Rwayi’s contention that no evidence was adduced of Mr Sijama’s experience, or to rebut the prima facie case made out by him, the arbitrator found that it was put to Mr Rwayi under cross-examination that Mr Sijama’s curriculum vitae showed that he had the requisite experience, and that Mr Rwayi was cross-examined on his version and that his evidence must be assessed in the light thereof and the common cause facts.

[15] Regarding the municipality’s alleged failure to comply with its recruitment and selection policy which required that the post be advertised internally, the arbitrator held that inasmuch as Mr Rwayi was afforded the opportunity to apply and compete for the post, he was not prejudiced. Furthermore, the successful candidate was an existing employee.

[16] Finally, the arbitrator considered that Mr Rwayi’s contention that, by appointing Mr Sijama to act in the post after the second advertisement, the decision to appoint him finally in the post was a foregone conclusion, was unsubstantiated. She found that there was no evidence to suggest that the entire recruitment and selection process was a sham.

The grounds of review

[17] Mr Rwayi relies on various grounds of review. First, he contends that the arbitrator’s award is one which a reasonable arbitrator could not have arrived at. Second, he contends that the arbitrator committed a reviewable irregularity by assuming facts regarding relevant experience not adduced in evidence. Third, that the arbitrator committed gross errors of law and/or fact because she had not advised the municipality and Mr Sijama that should they not lead evidence, only his version would be before the arbitrator. And fourth, that the arbitrator failed to properly apply her mind to the evidence, alternatively, took into

account irrelevant factors.

[18] In Sidumo and Another v Rustenburg Platinum Mines (Ltd) and Others 2008 (2) SA 24 CC at para 110 the court formulated the test in respect of the review of arbitration awards thus: is the decision reached by the commissioner one which a reasonable decision-maker could not reach. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) 2013 (6) SA 224 (SCA) at para 25 the court held that for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated in s 145(2)(a)(ii) of the LRA, the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result is only 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 to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside but are only of any consequence if their effect is to render the outcome unreasonable. See also Head of the Department of Education v Mofokeng and others (2015) 36 ILJ 2802 (LAC) at para 32.

[19] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others (2014) 35 ILJ 943 (LAC) the court explains at para 16 the approach of a reviewing court thus: A review 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 which was reasonable to justify the decisions he or she arrived at. And at para 18 it held that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether the failure of the arbitrator to deal with one or some of the factors amounts to process-related irregularity sufficient to set aside the award. This piecemeal approach to deal with the arbitrator’s award is improper as the review court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could not make.

[20] The arbitrator correctly understood that the dispute concerned an unfair labour practice. Mr Rwayi unsuccessfully applied for a vacant post. He formed the view that he was the more experienced candidate and ought to have been appointed. To this end, the arbitrator held that Mr Rwayi bore the onus of proving the unfairness in the municipality’s conduct.

[21] Central to Mr Rwayi’s complaint is that he considers that the successful candidate must have 5 years’ construction experience to carry out the functions of the post. He describes the experience required as field experience. He contended that a qualification in public administration was irrelevant because it was not required to perform facility management and maintenance. Mr Rwayi seems to have viewed the functions not as management functions, but as physical functions, a more hands-on approach, to be performed by carrying out maintenance of infrastructure such as the committee halls, municipal housing, and cemeteries and horticultural activities. In keeping with his view of the functions of the post, Mr Rwayi testified that an applicant who did not possess a construction qualification, could not approve the construction maintenance to be carried out in the fulfilment of the post’s functions.

[22] However, once the functions are properly understood as management functions, providing strategic advice, and monitoring operational and capital projects, Mr Rwayi’s complaint is no longer sustainable. The arbitrator correctly identified the functions as falling into the aforementioned categories. To the extent that Mr Rwayi and Mr Sijama have had the requisite qualifications and experience to fulfil the management functions of the post, both were entitled to apply for it.

[23] When Mr Rwayi applied for the post, he had a post graduate diploma in project management, a Bachelor of Administration degree, a national diploma in the engineering field of study, a post graduate diploma in property development and management in the field

of facilities management and was registered as a professional construction project manager with the South African Council for Project and Construction Management Professions.

[24] Similarly, when Mr Sijama applied for the post he had an advanced diploma in public administration, had completed a course in project management and had completed a course in integrated community development planning. Between 2013 and the date of his application for the post, Mr Sijama, in keeping with the functions and responsibilities of the post, had performed various management and monitoring functions. Accordingly, the arbitrator correctly held that Mr Sijama’s appointment was not arbitrary.

[25] In the light of the above, the arbitrator was entitled to accept that Mr Rwayi, and Mr Sijama, competed for the post. Both were shortlisted and invited to an interview. However, Mr Rwayi did not fare as well as Mr Sijama did during the interviews. The arbitrator was similarly entitled to conclude that given the shortlisting and interview process, Mr Rwayi was not prejudiced by the fact that the post was advertised internally and externally. The purpose of advertising any vacancies internally first, is to afford existing employees the opportunity to progress within the municipality. Mr Rwayi was afforded the opportunity

to apply. Despite its external advertising, the post was not filled by an external applicant. On the contrary it was filled by an applicant already in the municipality’s employ.

[26] Furthermore, Mr Rwayi contention that the arbitrator committed reviewable irregularities because she assumed facts regarding Mr Sijama’s relevant experience is, in the light of the above, unsustainable. His contention that the arbitrator’s failure to inform the municipality and Mr Sijama that if they did not lead any evidence only his version would be before the arbitrator, does not constitute an irregularity in the proceedings. It remains the employer’s prerogative to determine what evidence it would lead, if any, after cross-examination. And finally, Mr Rwayi does not say in what respects the arbitrator committed gross errors of law and or fact.

[27] In the light of the above, I am of the view that the arbitrator was correct in finding that Mr Rwayi did not discharge the burden of proving that he was treated unfairly. I am also of the view that the arbitrator has not misconceived the nature of the dispute nor has the arbitrator arrived at an unreasonable result.

Order

1. The review application is dismissed.

2. No order is made as to costs.

De Villiers-Jansen AJ

Acting Judge of the Labour Court of South Africa

Representatives:

For the Applicant: Aarninkhof Attorneys