IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2551/14
In the matter between:
BOABILWE ELISHA GAITSIWE 					    Applicant
and 
SAFETY AND SECURITY SECTORAL 
BARGAINING COUNCIL 					   First Respondent
COMMISSIONER LC SHANDU N.O 			           Second Respondent
MINISTER OF POLICE 					  Third Respondent
DIBI JACKSON MONYEPAO 					Fourth Respondent
Heard:		20 April 2017
Delivered:	27 July 2018
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TLHOTLHALEMAJE, J:  
Introduction and background:
[1]	The applicant is a police official in the employ of the South African Police Service (SAPS) since January 1986, and holds the rank of Lieutenant Colonel in the Human Resources Utilisation unit. He applied for an advertised position of Deputy Director (Colonel) in the Human Resources Utilisation Component: Performance Management in July 2011, as he was of the view that he met all of the requirements for the post. He was shortlisted and invited for two interviews conducted separately in November 2011 and December 2012. In May 2013 following upon the recommendations of the interview panel, the third respondent (Minister) announced the successful candidate for the position as being the fourth respondent (Monyepao).
[2]	Being of the firm belief that the failure to appoint or promote him constituted an unfair labour practice, the applicant then lodged a grievance internally in July 2013. Still aggrieved, he then referred a dispute to the first respondent, the Safety and Security Sectoral Bargaining Council (SSSBC). Arbitration proceedings commenced with the second respondent as the appointed Commissioner.
The arbitration proceedings:
[3]	The applicant’s case before the Commissioner was that the results of the interviews were not made available to him over a long period. He further complained about the fact that when the second round of interviews were held, a different person was appointed as chairperson of the interviewing panel. He was suspicious of the composition of the second interview panel, which constituted of senior managers, and who according to him, were angry with him because of comments he had made against them in the past. He also questioned the reason why the results in respect of other posts advertised at the same time were made known earlier.
[4]	Upon receipt of the second interview results he had requested that documents relating to the interviews be sent for forensic analysis in the light of the scores indicating that he was marked down in certain aspects of the interview, leading to a reduction of his overall scores. He was also concerned with the fact that the compilation of the shortlist and the interview score sheets were signed on different dates when the panel sat once, including the fact that different pens were used for the completion of those documents. Despite his request, no forensic analysis was done. He contended that the refusal to subject the results to forensic analysis had prejudiced him since its outcome would have had an impact on the scores.
[5]	As compared to other candidates, he testified that he qualified for the post in the light of his 10 years’ experience in performance management systems, and further having acted in the  post for over 20 months (Between April 2005 and November 2007). The other three candidates including Monyepao worked in performance system whilst the post fell under performance standard, which  was Senior Management System (SMS), and of which the others did not work with. He contended that he had trained one of the candidates, whilst Monyepao did not meet all the requirements for the post as he merely had two years’ experience at the time that the post was advertised, having been promoted to the rank of Lieutenant Colonel 2009. 
[6]	He further testified that Monyepao did not have knowledge of the PERSAP (a system used to capture performance management information), which was relevant for the post, whilst he had qualifications such as B-Tech in Policing, Middle management Learning Programme Course, Advanced Diploma in Management, which was an equivalent of an honours degree, and a certificate in management. At the time of the arbitration proceedings he was studying towards Advanced Diploma in Management, and in particular strategic management and project management, which were essential for the post and his areas of expertise. He further testified that SAPS spent R500 000 on him to attend a course in strategic management, and no other employee had done the course before. 
[7]	The testimony of Brigadier Bruce Shaw on behalf of SAPS was essentially that he was a member of the interviewing panel, which was guided by the requirements of the post when shortlisting candidates. Qualifications in human resources was relevant, as was policing degrees, because knowledge of the police environment was a requirement for the purposes of dealing with performance management systems. Other additional requirements were also looked at, including qualifications in human resources and/or a national diploma.
[8]	Shortlisted candidates were invited to a selection process which consisted of interviews and psychometric tests in November 2011. It was only after the first interview panel had embarked on the process of psychometric testing and interviews that it was realised that the process had not been approved. Upon obtaining legal opinion, the first interview process was then rendered null and void, hence it did not issue results.
[9]	A second panel was then constituted and it was decided that the interview process should continue with those candidates already shortlisted. Five candidates including the applicant were then interviewed and subjected to psychometric tests. The applicant obtained the highest marks in the interview process, whilst he had obtained the lowest in the psychometric tests. Upon the completion of the interview and psychometric testing, the applicant had obtained an overall mark of  42%, which was lower than all the candidates, whilst Monyepao had obtained 84%. 
[10]	A comparison between the applicant and Monyepao revealed that since the post required a minimum of two years in the environment, the latter had between 2005 and 2007 worked in Human Resources at the Head Office. From 2009 he dealt with performance standards under performance management component and had a total of seven years in the field, coupled with complying with additional requirements in terms of the relevant degree and core functions.
[11]	During the interviews, the panel had asked the candidates similar questions and upon a consolidation of the scores, they had recommended Monyepao because of his performance as he had also obtained 84% overall score.
The award:
[12]	The Commissioner in her analysis and having considered the requirements of the post concluded that the applicant had not established an unfair labour practice on the grounds that;
12.1	The requirements included possession of a grade 12/senior certificate or equivalent NQF 4 qualification with two years proven relevant experience in the specific field. Candidates were required to display competence in the post specific core function, be fluent in at least two official languages one of which must be English; be computer literate, MS Word, MS excel MS Power Point and be in possession of a valid driver’s license. 
12.2	The post (Performance Management) also required additional qualifications such as relevant degree/diploma (NQF qualification) and four years post qualification experience in the field.
12.3	The requirements for the post was two years, and proven relevant experience in the field of the post, whilst the additional requirements were four years’ post qualification in the field. Thus two years’ experience rather than 10 years in the specific field of the post meant that the requirements would be met.
12.4	In regards to the additional requirements of four years post qualification, these became relevant during the interviews. Monyepao however as evident from his CV worked in various capacities as a captain in the component Performance management Unit; Performance Standards; Lieutenant Colonel under Performance Management Unit (SMS) and Special Projects. 
12.5	There was no difference between standards and systems as alleged by the applicant. All the candidates performed tasks related to performance management systems, which was a requirement for selection, but the applicant on the other hand was never involved in customised performance management systems. The post did not list knowledge of the PERSAP system as a requirement, as it was merely an administrative function.
12.6	The applicant could not challenge the scoring of other candidates, including that of Monyepao as he was not present in their interviews. The fact that two interview processes were held could not constitute an unfair labour practice especially since the applicant had agreed to subject himself to the second one. Thus the first interview process was moot, and there was no merit in the applicant’s suggestion that the second interview process was not officially approved.
12.7	From the second interview process, the applicant scored the lowest as a result of his overall performance and based on the psychometric testing. Psychometric testing contrary to the applicant’s submissions was not prohibited by the National Instruction 6/2005 when evaluating candidates for positions. The applicant in this regard had not laid any foundation for his claim that his psychometric testing results were swopped around to his disadvantage.
12.8	There was no merit in the complaint that there was a difference in the dates on both the shortlist document and interview score sheets, nor in the contention that the scores were changed to the applicant’s detriment.
The grounds of review:
[13]	The applicant contends that the Commissioner’s award is reviewable on the grounds that;
13.1	She failed to apply her mind to the evidence before her by either failing to consider certain material evidence, or at most, attached disproportionate weight to the evidence;
13.2	She failed to take into account that the panel was without a secretary whilst the allocations were done in contravention of paragraph 7(3) of the National Instruction 6/2005, which provides that the chairperson must ensure that the records are kept of all proceedings during interviews and other meetings of the selection panel as well as every decision made and the reasons for the decision.
13.3	She committed a reviewable irregularity in that she did not allow the applicant to call two witnesses to testify (viz, the chairpersons of the two respective interviews), and instead unilaterally decided that their evidence would not contribute to his case, and instead, substituted them for another witness whose evidence was manipulated by the employer. She further failed to assist him to successfully subpoena the witnesses and/or to enforce the subpoena against the witnesses that did not respond to subpoenas.
13.4	She failed to consider the evidence that the applicant had successfully acted in the post for prolonged periods.
13.5	She attached disproportionate and/or insufficient weight to the evidence that the applicant’s scoring at the interviews were higher than that of Monyepao, and further that the outcome of the psychometric tests were unreliable.
13.6	She failed to take into account that the recommendation and appointment of Monyepao was not in accordance with procedures outlined in the National Instruction, and further that he (Monyepao) lacked the required knowledge and experience of the Performance Management Standards. 
13.7	She discarded the applicant’s evidence that there was a difference between the nature of his current position and Monyepao, and that based on the latter’s experience, he did not even qualify to be shortlisted having regard to the requirements of the post.
13.8	She failed to consider Monyepao’s academic qualifications, which were not relevant to the advertised post
[14]	The applicant’s grounds of review were addressed in detail in the answering affidavit, and I intend to deal with the submissions and heads of argument in that regard within the context of my evaluation as below.
Evaluation:
[15]	Central to the determination of this review application is whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach. To the extent that the nub of the applicant’s grounds of review is the contention that the Commissioner failed to apply her mind to the evidence before her, or placed some undue weight on some evidence to the exclusion of other relevant evidence, it has been stated in Head of the Department of Education v Mofokeng and Others that the failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity, but however that 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. 
[16]	It has further been held that the failure by the Commissioner to attach particular weight to evidence or attachment of weight to the relevant evidence is not in itself a basis for review. The issue therefore is whether the resultant decision falls outside of a band of decisions to which reasonable decision-makers could come on the same material.
[17]	Moreover, as stated in Mofokeng, the review court must 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, whether the arbitrator had not misconceived the inquiry or undertaken the inquiry in a misconceived manner, and whether there was a fair trial of the issues.
[18]	The starting point is to make an observation that the applicant’s grounds of review are such that they are akin to grounds of appeal, and to a large extent, pedantic. I did not understand the applicant’s case to be that the Commissioner misconceived the nature of the enquiry or undertook the enquiry in a wrong manner other than the irregularities alleged. 
[19]	It is trite that there is no such thing as an entitlement or a right to a promotion or appointment. In such disputes, the employee is only required to demonstrate that the failure to promote or appoint was unfair as contemplated in section 186(2)(a) of the Labour Relations Act (LRA), further taking into account that ultimately, the prerogative to appoint or to promote remains that of the employer. 
[20]	The employer’s discretion can only be interfered with, if it is established that it was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or was exercised in a biased manner. Ultimately, when an employee raises an unfair labour practice dispute relating to promotion, in order to be successful, he/she must show that he/she met the inherent requirements of the post in question, and that he/she was the best candidate for the post. Furthermore, it must be demonstrated that the appointment of another individual in preference over the employee was unfair, and there is a further obligation to demonstrate why the unfairness is alleged.
[21]	In this case, certain of the applicant’s submissions need to be quickly disposed of. The first is that neither he nor any of the other candidates were entitled to the appointment, and to that end, and on the facts, it was apparent that he, like the other four candidates, was afforded an equal opportunity to compete for the position by being shortlisted and interviewed. At most, the applicant agreed that by being invited to an interview, it did not imply that he would be appointed.
[22]	The second consideration is that the mere fact that the applicant had acted in the position does not entitle him to that position. An acting stint in a position is but one of the many considerations to be taken into account in determining whether a candidate is competent and suitable in the exercise of a managerial prerogative. 
[23]	As also correctly pointed out on behalf of the third and fourth respondents, the mere fact that the applicant was unhappy with his non-appointment does not give rise to an unfair labour practice. The issue is whether the conduct of the employer in not appointing him was unfair.
[24]	Part of the grounds of review relates to the procedural fairness of the interviewing process, and it is trite that a failure to promote or appoint does not only involve a consideration of the reasons for non-appointment, but also whether particular procedural prescripts were adhered to in arriving at a decision as to whom to appoint. In this regard, it was submitted on behalf of the applicant that the interviewing panel failed to adhere to the provisions of paragraph 7(3) of the National Instruction 6/2005 in that interviews were conducted in the absence of a secretary, who was supposed to keep records of those proceedings and of meetings and decisions arrived at by the panel. 
[25]	The applicant’s contentions regarding the non-compliance with the provisions of the National Instruction are nonetheless startling in that it was his case both in examination in chief and under cross-examination, that the employer did not have any policy regulating promotions. 
[26]	The purpose of the National Instruction, which contrary to the applicant’s contentions exists, is to regulate the appointment and selection of employees at particular levels. Marisha Van Wyk, who was appointed as the secretary to the interviewing panel had testified that it was for the first time that she had sat in the interviews and was basically clueless about what was going on as her role was not clarified before. She had captured basic information of the candidates and had not taken any further notes as the panel members took their own minutes. Her role was delegated to bringing the candidates into the interviewing room and compiling the long and shortlist of the candidates, and she was asked to excuse herself from the interview room whilst the panel discussed the candidates.
[27]	Van Wyk’s testimony was not disputed, and the third and fourth respondents’ response to the applicant’s contentions was that she could have recused herself from the task if she was clueless. This contention nonetheless does not have any merit in that on Van Wyk’s uncontested version, she was asked to leave the interview room whilst the panel deliberated over the candidates. She had not left on her own volitions. 
[28]	The contention further fails to address the point whether the failure to comply with the provisions of the National Instruction insofar as the keeping of interview records was addressed by the Commissioner, which she clearly did not, and the impact of that non-compliance on the ultimate outcome of the interview process.
[29]	I have had regard to the founding, supplementary and replying affidavits, and nowhere does the applicant indicate how the failure to comply with paragraph 7(3) of the National Instruction prejudiced him. I therefore see no reason why this issue was pursued when it was merely raised as a statement of fact.
[30]	The applicant further questioned whether the second interview panel was approved by the Divisional Commissioner. Paragraph 6(1) of the National Instruction provides that the Provincial or Divisional Commissioner under whose command the post resorts must appoint a selection panel. In his cross-examination, the applicant confirmed that he had not objected to the composition of the panel at the time it was convened or when he was interviewed. This issue was explored with Shaw during his examination in chief, and his testimony was to the effect that the second panel was approved by the acting divisional commissioner. In my view, that response in the absence of any contrary view put the issue to rest, and the Commissioner’s finding that there was no evidence to suggest that the panel had not been approved cannot be faulted. 
[31]	The applicant further complained that the promotion of Monyepao was recommended on the same day of the long-listing process. According to him, this indicated that there was non-compliance with procedures as specified in the National Instruction to the effect that the long-listing must be approved by the Divisional, Deputy or National Commissioner, where after the shortlisting must take place. Clearly this contention is misplaced as it is common knowledge that the process of shortlisting precedes that of the interview process. I fail to appreciate the merits of this complaint.
[32]	The applicant’s contentions that the Commissioner had equally ignored the fact that he was scored higher in the interview and that the results of the psychometric tests were unreliable or inconclusive are equally baseless. Again, it was not in dispute that on the whole, and upon a consideration of all the aspects of the interview process, the applicant had the lowest mark amongst the five candidates. The mere fact that  a candidate obtained a higher score in one aspect of the interview process is not sufficient on its own to be deserving of a post. If upon a consideration of all aspects of the recruitment interview, it comes out that one candidate’s performance was better than the others on the whole, the employer in its discretion, is entitled to appoint that candidate. 
[33]	Further in this case, it was not the applicant’s contentions that in applying its discretion, the panel had acted arbitrarily, capriciously, or was motivated by any other untoward considerations. The applicant’s suspicions of bias in that since the panel consisted of senior employees with whom he had quarrels in the past remains, or that the panel had down marked him, manipulated or swopped the scores to his disadvantage remains suspicions, and these are issues which neither the Commissioner nor this court should indulge.
[34]	In regards to his performance and scores flowing from the interview process, the applicant conceded that  based on the documentation available, he had not performed well, and he could not comment on the performance of other candidates. He conceded that the fourth respondent achieved a high mark of 84%, Tseola got 60%, Monyebodi got 57%, Louw got 52%, whilst he got 42%. He nonetheless contended that the panel failed to apply its mind. Based on these scores, and the fact that the applicant’s performance was woeful as compared to all other candidates, it is my view that his contention that he should nonetheless have been appointed is a classic case of entitlement to a post. I fail to appreciate in what respects, it can be said that the applicant ought to have been the successful candidate.
[35]	In regards to comparisons made with Monyepao, Shaw had at length discussed these. He had testified on the candidates’ qualifications and other aspects of the requirements of the post in making comparisons. He had conceded where required, that the applicant and Monyepao were on par in certain respects, and that the applicant’s score in the interview was higher than that of Monyepao.  He had confirmed that contrary to the applicant’s contentions, there was no difference in the tasks performed in performance management standard and performance system, and that the only difference was that one system applied to senior management level, whilst the other applied to employees at level 12 and below.
[36]	The issue of whether ten, four or two years’ experience was the required minimum experience for the post was also sufficiently dealt with by Shaw, who had pointed out that Monyepao further complied with additional requirements of four years for the post given his post qualification experience in the field. The Commissioner was therefore correctly satisfied on the evidence that only two years, instead of ten within the Performance Management environment was required, and that only additional qualifications and four years post qualification experience in the field of the post was required.  
[37]	In the end, the Commissioner was correctly satisfied that based on the points system as adopted, which encapsulated interviews and psychometric tests, the employer had not acted unfairly towards the applicant, and that the latter had failed to demonstrate any unfair labour practice on the part of the employer.
[38]	In regards to the allegation that the Commissioner committed an irregularity by  excusing witnesses who were subpoenaed upon their failure to respond to the subpoenas, and thus deprived the applicant of a fair hearing, the applicant intended to call General Mothlane, who was the chairperson of the first panel. This individual had failed to respond to two subpoenas. The applicant intended to call that individual to lead evidence in respect of the results of the first interview, which had not been made known.
[39]	The second witness the applicant had subpoenaed, General Mbatha, was according to the applicant, meant to testify on issues surrounding whether the second panel was approved by the Divisional Commissioner, and further shed light on the criteria used, and the reason the documents reflected the same date of shortlisting, long listing and recommendations.
[40]	Prior to dealing with these allegations, it needs to be pointed out that it is not correct as submitted on behalf of the applicant, that the Commissioner had unilaterally substituted Van Wyk with Shaw. Van Wyk was called by the applicant whilst Shaw was lined up as the employer’s witness. The contention therefore that the Commissioner substituted witnesses in circumstances where Van Wyk was called by the applicant lacks logic.
[41]	To deal with the issue of subpoenas, in circumstances where a person fails to respond to a subpoena, the provisions of section 142(8) of the LRA deem such persons as being in contempt of the Commission/Council. Under section 142(9) of the LRA, Commissioner may therefore make a finding of contempt for any reason set out in subsection (8), which finding may then be referred together with the record of proceedings to this Court for its decision in terms of subsection (11).
[42]	The Commissioner’s approach therefore to merely pass the buck to the employer in this case by threatening to draw an adverse inference against it should Shaw’s evidence not address issues that the two witnesses would have raised is a clear misdirection and a gross irregularity in the conduct of proceedings. Furthermore, the employer cannot be visited with an adverse inference where its employees refuse to respond to a subpoena, unless it can be demonstrated that the refusal was engineered or sanctioned by the employer.
[43]	A subpoena issued by the Commission for Conciliation Mediation and Arbitration (CCMA) or Bargaining Councils cannot simply be ignored unless set aside by this Court. In this case, the persons subpoenaed were high ranking officials in SAPS who should have known better. For them therefore to simply ignore the subpoenas without just cause was a clear basis for the Commissioner to make contempt findings as required in terms of the provisions of section 142 of the LRA. 
[44]	The mere fact that it was the applicant in the arbitration proceedings that had caused the subpoenas to be issued was irrelevant for the purposes of making that contempt finding. There was however no further obligation on the Commissioner as suggested in this review application, to aid the applicant in any other way other than through the making of contempt findings. It was therefore for the applicant (in the arbitration proceedings), to either request a postponement whilst the contempt proceedings under section 142(9)(b) of the LRA took their course, or to proceed without those witnesses whilst contempt findings were before this Court. 
[45]	 The issue however remains whether the Commissioner’s gross irregularity vitiated her entire award, especially in the light of the findings already made in this judgment. Other than the issue of contempt, which was a separate matter, the issue in any event to the extent that the Commissioner had misdirected herself in regard to the issue of subpoenas is whether the applicant was deprived of a fair hearing by continuing with his case in the absence of those witnesses. This question should be answered bearing in mind that it was his choice to continue, and barring the Commissioner’s abdication of her duties in this regard, or even a failure to advise the applicant of his options. 
[46]	The first potential witness, General Moutlhane was to testify in regards to the results of the first interview. It was put to the applicant during his cross-examination that the first interview process was in any event nullified on the basis that the panel had not been approved. The Commissioner had accepted that the issue surrounding the first interview was moot and correctly so. Once it was not disputed that the first interview panel was not approved, any other evidence pertaining to the results of that interview would not have taken the matter any further. This was particularly so since on Shaw’s uncontested evidence, the first panel never  convened and made recommendations.
[47]	In essence, General Moutlhane’s evidence (and without exonerating him from his apparent contempt of the arbitration proceedings), would not have taken the applicant’s case any further, and it can thus not be argued that the applicant was deprived of a fair hearing in regard to the absence of Moutlhane’s evidence.
[48]	General Mbatha was to testify on whether the second panel was approved. Without also exonerating Mbatha from his apparent contemptuous conduct, that issue as already indicated, was explored with Shaw at length, and in any event, the applicant’s version as also pointed out was that the second panel had indeed been approved. 
[49]	General Mbatha’s evidence was also meant to shed light on the criteria used by the panel, and the reason the documents reflected that the dates of the shortlisting, longlisting and recommendations were the same. Shaw had also testified on that issue at length, including how the overall scores were compiled and what criteria was looked at, including competence based on the inherent requirements of the post, or the capacity to acquire within a reasonable time, and the overall scores.  He had further testified that knowledge of the PERSAP function was not a requirement for the post.
[50]	In my view, to the extent that Mbatha and Shaw were members of the same panel, I fail to appreciate what other evidence in regards to the criteria employed would have taken the matter any further. To that end, even if the Commissioner failed to deal with the issue surrounding the failure to respond to the subpoena, and thus committed an irregularity, as per the principles set out in Education v Mofokeng and Others that failure/irregularity cannot result in the setting aside of the award, as there is nothing to suggest that the Commissioner misconceived the true enquiry, undertook the enquiry in a wrong manner, or that result is an unreasonable outcome. In essence as correctly pointed out on behalf of the employer, that irregularity is not of such a nature as to vitiate the Commissioner’s entire conclusions.
[51]	In the end, I am satisfied that save for the isolated irregularity pointed out on the part of the Commissioner, that fact on its own is not sufficient to render the award reviewable. On the whole, the Commissioner’s findings and award based on the facts placed before her fall within a band of reasonableness, and it follows that the review application ought to fail.
[52]	I have further had regard to the requirements of law and fairness, and I am not convinced that a cost order is warranted in this case. Accordingly, the following order is made;
Order:
1.	The application to review and set aside the award of the Second Respondent is dismissed.
2.	There is no order as to costs

____________________ 
E Tlhotlhalemaje 
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant:					Adv. H Bucksteg
Instructed by:					Carel J Schoeman INC 
For the 3rd and 4th Respondents:		Adv. RC Jansen Van Vuuren
Instructed by:				State Attorney, Pretoria