IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG		     

								CASE NO: JR2952/06

In the matter between:

THE MINISTER OF SAFETY AND SECURITY					Applicant	
and

SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL	First Respondent

Z S SIBEKO N.O.							          Second Respondent

A J VAN HEERDEN								Third Respondent

	JUDGMENT

FRANCIS J

Introduction
1.	The applicant, the Minister of Safety and Security, brought an application to review an arbitration award issued by the second respondent (the arbitrator) after the arbitrator had found that the applicant in not appointing the third respondent to post 2964 committed an unfair labour practice.  The arbitrator found that the applicant did not apply its mind when superintendent Pienaar was appointed.  The applicant was ordered to appoint/promote the third respondent to a superintendent’s post as he had requested.  The appointment/promotion was backdated to the date when Pienaar was promoted/appointed.

2.	The application was opposed by the third respondent.

Background facts
3.	The applicant advertised posts for promotion in 2004.  A post which was advertised was Artisan Superintendent (senior) at Middelburg Garage.  It was called post 2964.  The third respondent applied for the post along with others.  He was not appointed.  The panel that presided over the selection of a successful candidate are guided by national instruction 1 of 2004, an instruction that has legal standing and is intended to regulate the promotion process within the South African Police Services (SAPS).  Paragraph 12 of the national instruction sets out the criteria for the selection of candidates.  After considering all the applications, the panel decided to recommend, for appointment, three names which did not include the third respondent.  The recommended names were Captains J P Smith, H P Chabalala and L J Pienaar in that order.  The first and second most suitable candidates did not take up the appointment as they were promoted elsewhere.  Captain Pienaar was therefore promoted to the post.   

4.	The third respondent referred a dispute to the second respondent, the Safety and Security Sectoral Bargaining Council (the bargaining council).  An award dated 30 May 2006 was issued.  The arbitrator found in the third respondent’s favour.  The applicant was unhappy with the award and brought this application.

The arbitration proceedings

5.	The parties held a pre-arbitration meeting on 28 September 2005.  The parties agreed that the issue that the arbitrator was required to decide was whether the third respondent was a suitable candidate.  The relief sought by the third respondent was promotion, alternatively compensation according to the provisions of the Labour Relations Act 66 of 1995 (the Act).  The dispute was arbitrated on 19 May 2006.  Pienaar was cited as a second respondent in the arbitration proceedings and attended the hearing.

6.	The third respondent testified at the arbitration proceedings.  He said that he had been with the applicant for 19 years and 5 months.  He started as an apprentice mechanic and did his trade test in 1998 for petrol.  He obtained his diesel qualifications in 1993.  He was a petrol and diesel mechanic in the police.  In 1995 he was appointed as a team leader at the Johannesburg garage and thereafter became the workshop manager of the Johannesburg garage.  He ran the mechanical workshop in the garage.  In 1999 he went to the Randburg police garage and became the commander.  In 2002 he applied for a captain’s post at the Soweto garage and was appointed.  He is the commander at the Soweto garage up to the time when the matter was heard.  He has ten permanent people, twelve contract workers and a trailer driver with an assistant.  There are 24 people under him.  

7.	The third respondent testified that he had done his trade test in petrol and diesel.  He has done his national diploma in business management and has done various internal police courses.  He did a computer and human resources course.  He did his trade test for motor mechanic, trade certificate for diesel mechanic, workshop administration, a contract and procurement course, a garage inspection course, human rights and policing and a computerised workshop accounting system course.  The national diploma in business management is relevant since the garages that they are running is like a business.  They procure spares.  They do repairs and all type of things.  The diploma is necessary.

8.	During cross examination the third respondent said that he did his petrol mechanic trade test in 1991 and his diesel mechanic test in 1993.  A person starts with his apprenticeship  and must be four years in that trade before he can go for his trade test certificate.    He does the duties physically as an apprentice.  He and the incumbent both have two trade test certificates but he has a national diploma.  He did the national diploma since they are doing repairs and the running of the workshop and all of those things.  A person must do a business management course so that he as a manager can do that type of job.  He bettered himself in the field.  He is part of the supply chain management.   The buying of spares happens under one roof and they are part of supply chain management.  A person must better himself by having a diploma and this will enable him to do it better.  When he applied for the post, he was aware of the national letter that stated that there may be people who are qualified for the post but who would not be promoted.  He took it into account but felt that he did a diploma to better himself for his work in the police and the police did not consider that.  He admitted that it was taken into account since he was given points but he had obtained more points than the successful candidate and does not know what criteria was taken into account if the point structure was used.  He is aware that in terms of paragraph 3 of the national instruction it is stated that the mere fact that a person has got higher marks is not a basis for that person to be promoted but said that it makes no sense that he was given higher points and did not get the post.  This would only apply in the case of employment equity but this was not a factor for the post.  It would have been relevant if the successful candidate who was appointed was an African male or black female.  He agreed that paragraph 12 refers to training, development, record of previous experience, i.e. other factors that should be taken into account.  He is given points for those things and points are taken into consideration.  Points are not the only determining factors.  He received the highest point after those issues were taken into consideration.  He is given points for the record of previous experience.  All of those are combined and is than allocated points.  His academic qualifications, prior learning, his training and development, previous experience, competence and inherent requirements are given points to see who is the most successful candidate.  Pienaar was awarded 7 points and he 8 for competence based on the inherent requirements of the job or capacity to acquire within a reasonable time the ability to do the job.  For prior learning, training and development he received 8 and Pienaar 6.  For record of previous experience he received 8 and Pienaar 7.  These are the three things that they look at in terms of the national instruction.  If all of those are considered, he was a better candidate than Pienaar.  

9.	The applicant called director Mayasela Wilson Kekana as its witness.  He testified that he was the chairperson of the panel dealing with post number 2964.  They were guided by the national instruction 1 of 2004.  Paragraph 12 has a criteria that guided them to come to a conclusion for the most suitable candidate for the post.  After consideration of the applications of all the candidates that applied for the post, they were compelled to come with the three most suitable candidates and as a committee they came up with three names that they were convinced were meeting the criteria in terms of paragraph 12 of the national instruction.  They then recommended the three names as indicated on their recommendation panel list.  Pienaar was appointed who was the third most suitable candidate for the post.  The third respondent was short listed. Pienaar who was recommended for the post had been in the field for quite some time.  He was more in the field than the third respondent.  He was physically involved in the mechanical field.  He grew up and went through the ranks and this convinced the committee that he was the most suitable candidate than the third respondent who had less experience.  The relevant courses that Pienaar had made them to believe that he could do the job that he applied for.  In 1984 at Benoni he did a technical training in motor parts and practical.  In 1989 in Pretoria he did a fault finding and gearboxes and did the same in Pretoria in the same year.  In 1990 at Olifantsfontein he did a technical training.  In 2001 he did a motor mechanic course and a motor mechanic management course.  In Benoni he did a WAS course.  The national instruction does not require them to conduct interviews and none were conducted.  One of the most important requirements in the field of the garage was that the person had to have a diploma in motor mechanics or a trade test in that field.  Both of them had trade test certificates or else they would not have been short listed.  They could unfortunately not put them on the short list and they were supposed to come up with three names.  There were very small margins that separated many of the candidates.  In the third respondent and Pienaar’s case it was small.  Pienaar had convincing certificates or trade test  and other certificates.  The third respondent did not have such certificates which were attached. 

10.	During cross examination Kekana said that the panel went through all the applications of the candidates and was part of the evaluation process which he headed.  The panel gave Pienaar seven, six and seven points for the three categories which totalled 20.  They gave the third respondent eight, eight and eight points for the three categories which totalled 24.  The third respondent was scored higher than Pienaar.  On his personal score sheet he scored Pienaar, five, five and five points which is fifteen points.  He scored the third respondent seven, seven and seven points which totalled 21.  What made Pienaar to be recommended ahead of the third respondent was the position of the trade test certificate.  This is prior learning, training and development.  He agreed that he scored Pienaar 5 and the third respondent seven on prior learning, training and development.  He was asked why Pienaar who received less than the third respondent was the third person to be recommended. He said that after they had considered all the facts and not only the points they came to the conclusion that the Pienaar was most suitable.  He was asked what facts he considered. He said that in terms of paragraph 12 of the national instruction which consists of seven or eight sub-paragraphs they were convinced that he was more suitable.  He agreed that he awarded Pienaar five points and the third respondent seven.  He was asked why Pienaar was recommended as opposed to the third respondent.  He again said that he took into account paragraph 12 although he gave the third respondent seven.    He repeated that the marks were not the only determining factor.  He was asked what the determining factor was.  He said that it was the suitability and Pienaar had more certificates and was in the field for a long time.  Pienaar was more suitable than the third respondent.  His independent score does not necessarily mean that he was a suitable person.  All the scores were taken into consideration and the number of marks was not the determining factor of a suitable candidate.  The independent scores of the panel were combined and they came with a total mark or a total percentage.  They then came with the total marks of both candidates.  The third respondent received the highest marks if all the points were taken into account. The third respondent received 122 and Pienaar 84.  He was asked if they had made a mistake in relation to the third respondent.  He said that the marks were not the only determining factor but they had to consider everything.  They took into account many things like experience in the field, the number of years in that field, the training that a person had and the experience in the management in that field.  He was asked that if a person had more experience in a field and another one had less how marks would be allocated and whether a person with more experience would be given more marks.  He said that naturally the person with more experience would get more marks.  He gave the third respondent for record of previous experience eight and Pienaar six but they considered many things and after they had allocated the marks they came forward for a discussion and paragraph 12 of the national instruction was taken into account.  He was asked what as a whole was considered.  He said that it was the number of years in that field to do that job.  If they get the national instruction, they go through paragraph 12.  The marks are not the only  determining factor to appoint somebody.  They need to be sure that the person would do the job and they had to look at the certificates and the number of years in that field and so on and so on. The policy is that they mark their own marks separate from the other panellists.  They also consider the academic qualifications of both candidates and these make an impact on the score marks.  He could not say who was more qualified than the other academically.  Pienaar according to the records has a grade 12 which is the highest school standard passed and he has two apprentice certificates one in 1988 and one in 1989.  The third respondent has a matric entry that is the highest school standard passed and there is a national diploma in 2000.  Between the two, he could not say who was more qualified.  He said that a diploma was higher than a standard 10.
   
The arbitration award
11.	The arbitrator recorded in his arbitration award that he was to decide whether the applicant in not promoting the third respondent to post number 2964 committed an unfair labour practice or not.  If he found that the applicant committed an unfair labour practice whether to make an award ordering the applicant to appoint the third respondent to the rank of superintendent as he had requested.  The arbitrator dealt with the background of the matter and the evidence led by both parties.  It is not necessary to repeat this.

12.	The arbitrator said that Kekana’s evidence that Pienaar had more experience than the third respondent was not correct.  The valuation form of the third respondent showed that third respondent was scored 8 and Pienaar was scored 7.  If Pienaar had more experience than the third respondent then why was he scored less.  The third respondent was scored higher than Pienaar in all respects.  The arbitrator said that though the third respondent conceded during cross examination that the fact that a candidate scored higher marks did not suggest that he was going to be appointed to the post.  Kekana did not tell him what else was considered when Pienaar was appointed.  Pienaar scored less marks and he was the third most suitable candidate and no other reason was given as to why he was appointed in preference to the candidates who scored higher marks.  The third respondent also grew up in the field as Pienaar.  He started as an apprentice and rose through the ranks to become a commander in Soweto.  From the evidence led it was clear that the panel did not apply its mind when appointing Pienaar.  They appointed the third most suitable candidate when there was a candidate that was more suitable than him.

13.	The arbitrator found on a balance of probability that the applicant in not appointing the third respondent to post 2964 committed an unfair labour practice.  The applicant did not apply his mind when appointing Pienaar.  The applicant was ordered to appoint/promote the third respondent to a superintendent’s post as he was requested.  The appointment/promotion be backdated to the date when Pienaar was promoted/appointed. 

The grounds of review
14.	The applicant contended that the arbitration award is reviewable on the following grounds:

14.1	The arbitrator exceeded his powers.  He does not have original powers.  His powers are derived from the Act.  He committed a misconduct in relation to his duties as an arbitrator by moving beyond his powers, and usurping the power and discretion of the employer in circumstances where he was not permitted to do so.  The discretion of an employer to promote can only be interfered with in circumstances whether the promotion/failure to promote is arbitrary, capricious, unfair and/or made without regard to an objective standard.  He was not able to establish any of the above grounds, and still interfered with the decision of the applicant.  He exceeded his powers in ordering the promotion of the third respondent without considering the financial implications of the promotion on the applicant and/or a state body.  He  exceeded his powers in ordering the promotion of the third respondent to a post that is occupied, in circumstances where he knew the post was no longer available.

14.2	The arbitrator committed misconduct in relation to his duties as an arbitrator in that he misunderstood and/or did not apply his mind to the evidence before him and the discretion of the employer.  He misdirected himself by concluding that a higher mark in a selection process should have ensured that the third respondent was appointed to the post.  He misdirected himself by failing to consider the discretion of the employer to promote a candidate with a lower score in the interview process.  He misdirected himself in that he misunderstood and/or failed to consider the comparative experience of the successful candidate in the field of mechanics.  He  failed to make a ruling on the joinder of the incumbent in the post, to the proceedings.  He gave undue consideration to a joinder agreement signed by the third respondent and applicant, which did not include the incumbent, alternatively he  misunderstood the need for the incumbent to be given notice of a need for a joinder.  He further misdirected himself in promoting the third respondent to a post where the incumbent was not formally joined.  He misdirected himself by interfering with the discretion of the employer and substituting his decision for that of the panel.  He  misdirected himself by finding that the panel did not apply its mind to the appointment/promotion of the incumbent, and directing the promotion of the third respondent rather than the re-constitution of the panel and promotion process.  He  misdirected himself by promoting the third respondent in circumstances where the third respondent did not allege that he would have been promoted but for the alleged irregularities in the promotion process.

Analysis of the evidence and arguments raised
15.	It was contended on behalf of the applicant that it is important that the discretion and power to promote be properly defined and clearly located with the applicant as an employer.  The decision of the arbitrator to promote the third respondent sets a precedent with very serious ramifications.  Arbitrators cannot promote unless an employer, in its failure to promote has acted in an arbitrary, capricious or unfair manner, and/or without an objective standard.  The promotion awarded by the arbitrator was made by an outside authority who had stepped beyond his mandate.  There is no post available for the third respondent and the financial implications of this appointment was not considered.  The applicant relied on Pharmaceutical Manufacturers Associates SA & Another: In re Ex parte President of the RSA & Others 2000 (2) SA 674 (CC) at 709 at paragraph 90 where the following was stated:
“The setting of this standard does not mean that courts can and or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested.  As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary and as long as the functionary’s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagree with it or considers that the power was exercised inappropriately’.

16.	It was contended that the power to promote vests in the National Commissioner or Provincial Commissioner, not Courts, certainly not arbitrators.  The arbitrator exceeded his powers and cannot order the applicant how to exercise his discretion.  It was contended further that Sidumo Mines Ltd and Others v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) does not give arbitrators powers they did not have in terms of the LRA.  The remark that arbitrators are not required to show deference to the employer’s decision was in the context of rejecting the reasonable employer test.  It was not a general remark without context.  Even applying the reasonable test - a reasonable arbitrator properly applying the law to the facts and properly applying his mind to the evidence would not have come to the conclusion that the arbitrator came to. A reasonable arbitrator would have known that in terms of the law he/she cannot order a functionary to exercise a statutory discretion in a particular way.  The arbitrator was informed that Pienaar had more relevant experience than the third respondent.  He rejected this merely because the third respondent scored more points that Pienaar which was unreasonable.  The award should on this basis be reviewed and set aside.

17.	It is trite that the Act deals with different types of disputes including dismissals and unfair labour practices.  The Act also grants employees certain remedies in unfair dismissal disputes and unfair labour practice disputes.  An employee like the third respondent who feels aggrieved by his non appointment can refer such a dispute to the relevant bargaining council or the CCMA in terms of section 186(2)(a) of the Act.  The third respondent did so.  Section 186(2)(a) provides as follows:  

“‘Unfair labour practice’ means an unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”.

18.	Section 193 deals with remedies for unfair dismissals and unfair labour practice disputes.  Section 193(4) provides as follows:
“An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.”

19.	It is clear from section 193(4) of the Act that an arbitrator must determine the dispute on the terms that the arbitrator deems reasonable.  Those terms may include an order for reinstatement, re-employment or compensation.  The three examples given in the said section are not the only terms that the arbitrator may use.  If, as in the present case the parties agreed that the arbitrator had to decide whether the third respondent was suitable and whether he should be promoted, it cannot be said that the terms used by the arbitrator to determine the dispute was not reasonable.  The third respondent had in his opening address stated that the relief that he was seeking was to be promoted to the rank of superintendent.  The relief that an arbitrator may grant in an unfair labour practice dispute appears to be wider that what can be granted in an unfair dismissal dispute. 

20.	It is common cause that the third respondent and Pienaar are both white males who applied for post 2964.  They with other candidates were short listed for the post.  No interviews were conducted and three candidates were recommended by the interviewing panel to be appointed.  The first two candidates did not take up the appointment and Pienaar was duly appointed.  The third respondent felt aggrieved with his non appointment and referred an unfair labour practice dispute to the bargaining council.  After the arbitrator heard evidence, he found in the third respondent’s favour.

21.	It is further common cause that the third respondent had received a higher score than Pienaar in all the categories.  For competence based on the inherent requirements of the job or the capacity to acquire it within a reasonable time the ability to do the job, the third respondent received 8 points and Pienaar 7.  For prior learning, training and development the third respondent received 8 and Pienaar 6.  For record of previous experience the third respondent received 8 and Pienaar 7.  The national instruction specifically indicates that it does not follow that a person who has received a higher score than the other would necessarily be appointed.  This will be true when a white male competes against a black person or a woman or a person with a disability.  The historical disadvantages of the past will be taken into account when considering experience etc.  The position will be and must be different when two white able males compete for the same position.  There is no indication before me that Pienaar was a person suffering with a disability and this was also not the basis on which the panel recommended Pienaar for the position.  Kekana testified that Pienaar was preferred above the third respondent since he was longer in the field and had more experience.  The courses that he did put him in better stead than the third respondent.  He had convincing certificates or trade test and other certificates.  Kekana’s testimony was not supported by the factual positions.  There was nothing really that separated the two as far as certificates are concerned.  The fact of the matter is that the third respondent was allocated higher marks than Pienaar and was not recommended or appointed in the post.  This is the factual position and even if the matter was to be referred to another arbitrator, the factual position will not change.	

22.	As stated above the arbitrator has set out in his award that the issue to be decided was whether the applicant in not promoting the third respondent to post number 2964 committed an unfair labour practice or not.  If he found that the applicant committed an unfair labour practice whether to make an award ordering the applicant to appoint the third respondent to the rank of superintendent as he has requested.

23.	The applicant’s reasons for not appointing or promoting the third respondent was irrational. All the factors that the interview panel considered were factually incorrect.  The  advertised post was initially earmarked for African females.  There were no African female applications so it was made open to all employees.  As stated previously both the third respondent and Pienaar are white males.  The third respondent received a higher score than Pienaar and despite this was not appointed.  The applicant’s reliance on the Pharmaceutical case appears to be misguided.  It finds no application in unfair labour practice dispute since the Act grants the arbitrator certain powers.  I do not understand why it is contended that the arbitrator’s rejection that Pienaar had more relevant experience than the third respondent who had score more points can be said to be unreasonable. On the question of relevant experience, the interview panel gave the third respondent a higher mark than Pienaar.  The arbitrator recorded the following observations:
“Director Kekana’s (Thoka) evidence that Supt Pienaar had more experience than the Applicant (third respondent) is not correct.  The valuation form of the Applicant shows that the Applicant was scored 8 and Supt Pienaar was scored 7.  If Supt Pienaar had more experience than the Applicant why was he scored less?  In fact the Applicant was scored higher than Supt Pienaar in all respects.
Though the Applicant conceded during cross-examination that the fact that a candidate scored higher marks does not suggest that he is going to be appointed to the post.  Director Kekana did not tell me what else was considered when Supt Pienaar was appointed.
Supt Pienaar scored less marks and he was the third most suitable candidate and no other reason was given as to why he was appointed in preference to the candidates who scored higher marks.  The Applicant also grew up in the field as Supt Pienaar.  He started as an apprentice and rose through the ranks to become a Commander in Soweto.
\	From the evidence of Director Kekana it is clear that the panel did not apply its mind when appointing Supt Pienaar.  They appointed the third most suitable candidate when there was a candidate that was more suitable than him”.
This quotation should put to rest the applicant’s contentions that the arbitrator did not apply his mind and that his award is not one that a reasonable decision maker would not have made.

24.	If one takes the applicant’s arguments to its logical conclusion, it would mean that employees who are victims of a blatant unfair labour practice will be left with no remedy.  An arbitrator will not be able to address that wrong.  This surely cannot be the case.  The fact that the position has been filled is no bar to an arbitrator not ordering a person to be promoted.  This is a risk that an employer will face if it makes appointments that cannot be defended later at arbitrations.  It would force the selection panels to apply their minds properly when making such recommendations and for the national commissioner or provincial commissioner to ensure that it is done properly.

25.	The applicant did not proceed with the joinder argument.  Pienaar was cited as a party to the arbitration proceedings and was in attendance.  He was afforded an opportunity to cross examine the witnesses etc.    It cannot be said that the arbitrator’s award is not one that a reasonable arbitrator would not have made.

26.	The application stands to be dismissed.  There is no reason why costs should not follow the result.

27.	In the circumstances I make the following order:

27.1	The application is dismissed with costs.

                     
FRANCIS J

FOR THE APPLICANT		:	A P LAKA INSTRUCTED BY STATE ATTORNEY

FOR THIRD RESPONDENT	:	C ASCAR INSTRUCTED BY FLUXMANS ATTORNEYS

DATE OF HEARING		:	29 OCTOBER 2009	

DATE OF JUDGMENT		:	2 DECEMBER 2009