THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable
case no: C07/2022

In the matter between:

THANDEKA GANA-MBEKENI	Applicant

and

PUBLIC HEALTH AND SOCIAL DEVELOPMENT 
SECTORAL BARGAINING COUNCIL				First Respondent

JAMES NGOAKO MATSHEKGA NO				Second Respondent

THE DEPARTMENT OF SOCIAL DEVELOPMENT
WESTERN CAPE							Third Respondent

Heard:	13 November 2024
Delivered:	20 December 2024
Summary: Application to review and set aside an award dismissing an unfair labour practice dispute relating to non-promotion after the Commissioner found that the decision-maker applied his mind to the decision sought to be challenged, which must be allowed to stand. Review sought on the basis that the decision maker was bound by the recommendation of a selection panel to appoint the applicant. Review application dismissed.

JUDGMENT

GANDIDZE, AJ

Introduction 

[1]	The individual applicant, Thandeka Gana-Mbekeni, sought an order in terms of section 145(2)(a)(ii) of the Labour Relations Act (LRA), reviewing and setting aside an arbitration award issued by the second respondent Commissioner, issued under the auspices of the Public Health and Social Development Sectoral Bargaining Council, the first respondent, dismissing an unfair labour practice claim that she had filed against her employer and the third respondent, the Department of Social Development Western Cape.  

[2]	At the hearing of the matter, the third respondent raised preliminary points. The first was that the applicant filed heads of argument before the Registrar issued a set down notice with directives on the filing of heads of argument. The second was that the applicant’s representative was requested to furnish the State Attorney with copies of the answering and replying affidavits, which had been misplaced by the State Attorney official who handled the file before resigning, and that the delay in providing the affidavits had left the third respondent’s counsel with limited time to prepare for oral argument. Essentially, the third respondent argued for the removal of the matter from the Court roll with costs. I disposed of both points at the commencement of the oral argument, ensuring that the matter that had been postponed on two previous occasions was finally determined. The third respondent had not been prejudiced by the premature filing of the applicant’s heads of argument, and both parties were afforded an opportunity to file supplementary written submissions. Both parties took up the opportunity. 

[3]	The applicant had her own preliminary point that the deponent to the third respondent’s answering affidavit lacked authority to depose thereto. This point was abandoned at the hearing of the matter. 

[4]	What remains to be determined are the merits of the review application. 

Background facts

[5]	The applicant, an employee of the third respondent, applied for the post of Manager: Community Development Policy: Sustainable Livelihood (the position). Three candidates, including the applicant, were shortlisted and interviewed. The results were 76 scores for Msomi, 69 for the applicant, and 68 for Zana. The selection panel found that both Msomi and the applicant had shortcomings. The applicant’s shortcomings included networking, working with people, adapting, and responding to change. Notably, for purposes of this review application, the selection panel erroneously but bona fide attributed the applicant’s shortcomings to Msomi. Even though Msomi was the highest scorer, the panel recommended that the applicant be appointed.

[6]	Exercising the powers delegated to him by the Executive Authority, the Head of the Department (HoD) rejected the panel’s recommendation and directed that the post be re-advertised. This decision aggrieved the applicant; hence, the unfair labour practice claim was lodged with the Bargaining Council. 

The arbitration proceedings

[7]	The applicant testified in support of her case, and the HoD testified for the third respondent. 

[8]	The applicant testified that she met the minimum requirements for the position, that the panel was properly constituted, and that the HoD’s reasons for not approving the recommendation of the selection panel to appoint her were not reasons envisaged in paragraph 14.3 of the Provincial Government Western Cape Transversal Human Resource Management Policy (the Policy). 

[9]	The HoD testified that the applicant was not a suitable candidate for the position, that she did not function on the level required for the post, that the selection panel erroneously attributed the applicant’s shortcomings to Msomi, and that Policy was a guide which was not binding on him for that reason. 

[10]	In an award dated 18 December 2021, the Commissioner found that he was required to consider whether the decision of the HoD not to endorse the selection panel’s recommendation to appoint the applicant and to re-advertise the post was fair. The Commissioner found that the HoD applied his mind to the issues before him, and therefore, the applicant failed to establish that the employer had committed an unfair labour practice against her. 

Applicant’s grounds for review.

[11]	The applicant relies on section 145(2)(a)(ii) of the LRA which provides as follows: 
(2)	A defect referred to in subsection (1) means—
(a)	that the commissioner—
(ii)	committed a gross irregularity in the conduct of the arbitration proceedings;

[12]	The applicant does not take issue with the test applied by the Commissioner in determining the dispute before him, viz that the matter turned on the fairness of the HoD’s decision not to accept the recommendation of the selection panel to appoint the applicant, but submits that the Commissioner committed a gross irregularity and misconceived the nature of the inquiry by asking whether the HoD applied his mind to the selection panel’s recommendation and whether the HoD made an informed decision. According to the applicant, this approach was flawed and wrong, and the correct approach was for the Commissioner to ask whether the HoD could interfere with the recommendation of the selection panel outside the confines of paragraph 14.3 of the Policy. Once the Commissioner answered that question in the negative, so the submission went, it had to be found that the third respondent committed an unfair labour practice against the applicant. 

[13]	Paragraph 14.3 of the Policy provides as follows:
‘14.3	Selection panels have no decision making powers. The panel is responsible for making a recommendation to the relevant Executive Authority in respect of SMS posts or his or her delegate in respect of non- SMS posts on the most suitable candidate for the post. In instances where the Executive Authority in respect of SMS post or his / her delegate in respect of non- SMS posts deviates from a recommendation by selection panel he or she must record the reasons for such deviation in writing for the Panels reconsideration. Except for employment equity requirements, the reason(s) for not accepting the recommendation of the Panel is confined to the requirements as advertised or any procedural irregularities in respect of the selection process.’

[14]	Based on this paragraph, it is the applicant’s case that the HoD could only interfere with the decision of the selection panel if (a) there were concerns relating to the advertised requirements for the position and/or (b) procedural irregularities and/or (c) employment equity requirements. The submission is that, in this case, the HoD rejected the selection panel’s recommendation for reasons not covered by paragraph 14.3 of the Policy, thereby disregarding and violating the Policy.

[15]	The award is also criticised for being silent on paragraph 14.3 of the Policy, which, according to the applicant, points to the Commissioner not having considered its applicability to the matter before him. 

[16]	The submission is further that to the extent that the HoD found the applicant unsuitable for appointment, paragraph 14.2 of the Policy does not give the HoD the powers to decide the suitability of candidates and that this power is exclusively reserved for the selection panel.  

[17]	Paragraph 14.2 provides as follows:
‘14.2	The Independent evaluations of individual panel members are to be recorded, and these inputs are to be processed as a finding of the Panel as an entity. Allocation of points provides the Panel with only an indication of the relative assessments of individual Panel members. The Panel must then apply its mind (discussion/further evaluation) and motivate (consensus or a majority decision) who the successful candidate should be. The decision concerning the most successful candidate to be recommended for appointment/ promotion/ transfer to the post must be based on merit as well as the employment equity targets of a department. However, ‘potential’ may be considered by the Selection Panel as one of the facets in their horizontal comparison of candidates, provided that such potential is assessed to be realisable within a reasonable time frame as determined by the Department and on recommendation of the Panel (taking into account it's assessment of the candidate during the interview), with reference to the position, the needs of the position and the employer. The candidate who has scored the highest points in the selection process may thus be passed over, and a candidate with a relative low score may be regarded as the most suitable candidate overall.’

[18]	The further contention is that the third respondent cannot rely on paragraphs 6.2, 17.1, and 19 of the Policy in the review proceedings, which provisions it never relied on during the arbitration proceedings, and that it is bound by the HoD’s testimony that the Policy was a guide. 

[19]	Paragraph 6.2 provides as follows:
‘The primary managerial responsibility for the selection of candidates to vacant posts vests in their relevant Executive Authority (Provincial Minister) and the Head of Department whose establishment the vacancy (ies)  exists or their delegates. However, the PGWC, as a collective, has a responsibility to ensure that it employs the most suitable candidate as members of its SMS, including Senior Professionals, and must devise measures to ensure that future service delivery and strategic leadership needs are met. This collective responsibility manifests in the role of Cabinet in filling of posts in the SMS Cadre, including Senior Professions.’

[20]	It is the applicant’s case that the provision does not give the HoD the authority to decide the most suitable candidate, as that authority is reserved for the selection panel. 

[21]	As for paragraph 17.1, it provides as follows: 
‘17.1	A Department reserves the right not to fill a vacancy or not to appoint, promote or transfer any of the candidates participating in the interviews.’

[22]	The applicant submits that the provision is irrelevant as it is confined to the third respondent not promoting a candidate participating in an interview and does not extend to rejecting a recommendation of a selection panel to appoint a specific candidate. 

[23]	Paragraph 19 of the Policy provides that:
‘The power to recruit and appoint staff vest with the Executive Authority (i.e the Provincial Minister. The model for delegation of powers with regard to human resource management of the PG WC provides for this power to be delegated to the incumbent of the post of Director/Head of Institution when dealing with cases which do not form part of the Senior Management Services.’

[24]	It was submitted on behalf of the applicant that the provision does not give the HoD the authority to deviate from the selection panel's recommendation unless paragraph 14.3 applied, which did not. In that case, the HoD had no discretion and was compelled to appoint the applicant, who acquired a right to be promoted by the selection panel’s recommendation. 

[25]	As it relates to the applicant’s shortcomings being erroneously attributed to Msomi by the selection panel, a concession was made that the HoD testified that there were irregularities in the process but that procedural irregularities occur ‘when a process or procedure is not followed as it should be, or when procedural fairness is not observed,’ and that this definition does not cater for the erroneous attribution of shortcomings to candidates, but procedural flaws. The further submission is that the Commissioner did not base his findings on procedural irregularities in the selection process. 

[26]	It is also the applicant’s case that the HoD was required to record his reasons for deviating from the selection panel's recommendation for the panel’s reconsideration, that this was not done in this case, and that the Commissioner failed to consider this.

Third respondent’s submissions

[27]	The Commissioner understood the crux of the matter as determining the fairness of the HoD’s decision not to appoint the applicant, notwithstanding the selection panel’s recommendation. The Commissioner accepted the HoD’s reasons for not accepting the recommendation to appoint the applicant given (a) her shortcomings, (b) which had erroneously been attributed to Msomi, and (c) that Msomi scored higher than the applicant and that this outcome is reasonable.

[28]	The Commissioner was correct in finding that he could not readily interfere with the decision of the HoD unless (a) the HoD acted based on some unreasonable, irrelevant, and invidious considerations, or (b) the decision was arbitrary, capricious or unfair, or (c) the HoD failed to apply his mind or acted in bad faith, or (d) there was no rational connection between the decision not to promote the applicant, the purpose of the promotion and the information upon which the decision was based. 

[29]	On the status of the Policy, it remains a guide, but more importantly, paragraph 14.3 must be read together with paragraph 17.1, which provides that:
‘17.1	A Department reserves the right not to fill a vacancy or not to appoint, promote or transfer any of the candidates participating in the interviews.’ 

[30]	Even though the Commissioner did not explicitly refer to paragraph 17.1 of the Policy, he had regard to all the documents placed before him, including the Policy. He found that the applicant did not have a right to be promoted unless it was in the contract and statute but had a right only to be given a fair opportunity to compete for a post. According to the third respondent,  the applicant’s concentration on paragraph 14.3 of the Policy, ignoring the Commissioner’s reasons for finding that an unfair labour practice had not been proved, constitutes a piecemeal approach in that it ignores the fact that the HoD provided reasons for his decision and that the finding of the Commissioner that there is no unfair labour practice is, in fact, reasonable. 

[31]	Paragraphs 6.2 and 19 of the Policy gives the HoD the authority to select the most suitable candidate for a position. 

Legal principles

[32]	Section 186(2)(a) of the LRA provides as follows:
‘(2) 	Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) 	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.’ 

[33]	Where a party alleges an unfair labour practice, the test is fairness. The Commissioner is called upon to determine whether the employer acted fairly. 

[34]	In Department of Rural Development and Agrarian Reform v General Service Sectoral Bargaining Council, the Labour Appeal Court stated as follows:
[23]	…Courts and arbitrators should be reluctant to interfere with an employer’s decision to refuse promotion. They will do so only when the decision or reasoning is assailable because there is evidence that the employer acted based on some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply its mind to the promotion or acted in bad faith. But equally, where there is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified. Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post…

[35]	Even though the test is not specified in section 145 of the LRA, it is now trite that in these matters a Commissioner’s award will be reviewable and set aside if it is one that no reasonable decision-maker would have arrived at. 

[36]	Where an irregularity is alleged as contemplated in section 145(2)(a)(ii), in Head of the Department of Education v Mofokoeng and Others, the Labour Appeal Court stated that not all irregularities produce an unreasonable outcome, and that whether the irregularity is material must be assessed with reference to the distorting effect it may have on the arbitrator’s conception of the inquiry, the delimitation of the issues for determination and the ultimate outcome. The Labour Appeal Court (LAC) went on and stated as follows:
[33]	… The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA.

[37]	Natal Joint Municipal Pension Fund v Endumeni Municipality guides that when interpreting a document, the approach to be adopted requires, among other things, reading provisions in the light of the document as a whole. 

Evaluation

[38]	It was accepted on behalf of the applicant that the issue before the Commissioner was the fairness of the HoD’s decision not to accept the recommendation of the panel to appoint the applicant. 

[39]	The applicant does not take issue with the correctness of the reasons provided by the HoD for not appointing her to the position, her only issue being that the HoD could only deviate from the selection panel’s recommendation for the reasons set out in paragraph 14.3 and not for any other reasons. Therefore, the Court is required to inquire and assess whether:
39.1	The applicant is correct in her assertion that the HoD had to appoint her unless the requirements in paragraph 14.3 of the Policy were met, and if so,
39.2	Whether the reasons provided by the HoD for not appointing the applicant, viz, (a) her shortcomings, (b) that her shortcomings were erroneously attributed to Msomi, and (c) that Msomi scored higher than the applicant were covered by paragraph 14.3 of the Policy. 

[40]	Even though the HoD testified that the Policy was a guide, it applied to the promotion process. The question is whether the HoD incorrectly applied the Policy as contended by the applicant on review. 

[41]	It will be recalled that paragraph 14.3 of the Policy permits the HoD to reject the selection panel's recommendation for employment equity reasons, where the requirements as advertised were not complied with, or if there were procedural irregularities in the selection process. 

[42]	On whether there were irregularities in the selection process, the HoD testified that the selection panel's recommendation did not follow logically from the facts. He clarified the issue further as follows:
‘But I think the question of procedural irregularities is also a very open-ended concept. For example, if, in a supply chain context, a panel, a supply chain committee is correctly constituted, and duly appointed as prescribed in the legislation, and they accidentally recommend supplier, who actually scores lower than the highest scoring supplier, even if it is a bona fide accidental error, that they have incorrectly scored, or even if they are arithmetic is wrong, and we have had it many times before, if the Auditor General comes and audits and they find that the panel who recommended the tender had made an error, it is still irregular. So it is the same logic that I can apply here as well, if the panel has incorrectly come to a conclusion that this is the preferred candidate based on an incorrect reading of the information in front of them it still constitutes an irregularity even though it was bona fide, and even though all the other procedural aspects may seem correct, there is still a problem.’

[43]	It is not in dispute that the selection panel wrongly attributed the applicant’s shortcomings to Msomi. Contrary to the submission made on behalf of the applicant, that is a procedural irregularity and a reason for deviating from a selection panel’s recommendation.

[44]	The HoD also testified as follows:
‘Number 2, the candidate, who is the applicant in this matter, is scored significantly lower on the LPCAT score, and thirdly, significantly lower on the interview panel. And what is odd is that if the interview panel felt that Ms Gana was the most suitable candidate, which is what they argued in the narrative under 3.4 and 3.5, why would they not have scored her higher in the interview. So there is a number of issues with the reasoning of the panel.’

[45]	It was also common cause that Msomi was the highest scorer, and yet the selection panel recommended that the applicant be appointed after pointing out that both Msomi and the applicant had shortcomings. Once it had been realised that the selection panel made the error of attributing the applicant’s shortcomings to Msomi, that was a clear procedural irregularity justifying the rejection of the panel’s recommendation, as sanctioned by paragraph 14.3. 

[46]	There is no merit to Mr Baartman’s submission that the procedural irregularities contemplated in paragraph 14.3 are those before the selection panel gets involved and the Court was not referred to any evidence placed before the Commissioner to support that interpretation of procedural irregularity. In addition, that interpretation of procedural irregularity was not put to the HoD when he testified about the procedural irregularities with the selection process, resulting in the applicant being recommended for appointment. 

[47]	The submission by Mr Baartman that the HoD was bound by the recommendation of the selection panel is not supported by any provision in the Policy. The selection panel does not have decision making powers and its powers were limited to making a recommendation, which the HoD could accept or reject. In this case, the HoD rejected the recommendation for valid reasons, and the decision was not based on some unreasonable, irrelevant, or invidious consideration. He did not act ‘on a whim’ as submitted by Mr Baartman in oral argument. The decision was also not unfair, capricious, or arbitrary. The HoD applied his mind to the issues before him as required, and he did not act in bad faith. There is a rational connection between the decision not to implement the recommendation of the selection panel to appoint the applicant and the material placed before the HoD. Therefore, the Commissioner’s finding that the HoD applied his mind to the matter before him did not constitute misconceiving the inquiry or an irregularity. 

[48]	The HoD’s reasons for not appointing the applicant are covered by paragraphs 14.3 and 17.1 of the Policy. In terms of these provisions, the HoD can reject the selection panel’s recommendation for valid reasons, including the non-suitability of a recommended candidate. The HoD is not stuck with an unsuitable candidate recommended by the selection panel. 

[49]	The fact that the award is silent on paragraph 14.3 is of no consequence. The Commissioner was aware of the paragraph the applicant and the HoD testified about. The Commissioner did not have to list all the evidence in the award. 

[50]	Even if the third respondent did not rely on paragraph 17.1 of the Policy during the arbitration proceedings, on review, the Court must take into account all the material placed before the Commissioner and decide whether the award is reviewable. Paragraph 17.1 makes it clear that the third respondent reserves the right not to fill a vacancy and not to promote. The Commissioner recorded this principle in the award. To find that because paragraph 17.1 of the Policy was not explicitly relied upon by the third respondent would be to ignore material evidence that served before the Commissioner, and which is in line with the applicable legal principles where promotion disputes are concerned and would lead to injustice and a wrong and appealable judgment.

[51]	The HoD’s decision not to refer the matter back to the selection panel but to advertise the position in circumstances where both the applicant and Msomi had been found to have shortcomings cannot be faulted. The HoD testified that he could decide not to fill the position without referring the matter to the selection panel as he did not require additional information from them. 

[52]	The Commissioner understood that his task was to determine if the HoD had acted unfairly towards the applicant, and after considering the reasons provided by the HoD for rejecting the selection panel’s recommendation to appoint the applicant, the Commissioner was satisfied that the HoD applied his mind and that the decision not to appoint the applicant was an informed one. That decision is reasonable and there is no reason to interfere with it on review. 

[53]	In the premises, the following order is made:

Order

1.	The review application is dismissed.
2.	There is no order as to costs. 

T. Gandidze
Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:			Mr C Baartman
Instructed by:			CMB Attorneys

For the Third Respondent:		Advocate LX Dzai
Instructed by:			The State Attorney