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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 257/19

In the matter between:

TRANSNET SOC LIMITED                                                                          Applicant

and

UNTU OBO JOHAN COETZEE                                                      First Respondent

AG SJOLUND NO                                                                      Second Respondent

TRANSNET BARGAINING COUNCIL                                           Third Respondent

 

Heard:  8 July 2021

Delivered:  16 August 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 16 August 2021.

JUDGMENT

REDDING, AJ

[1]   The applicant, Transnet SOC Limited (Transnet) applies to review and set aside the decision of the second respondent, a commissioner acting in the Transnet Bargaining Council. In an award delivered on 14 December 2018 the commissioner set aside the appointments of two employees, Mr Mathekgane and Mr Dube; ordered Transnet to ensure that the first respondent (Mr Coetzee) had his certificates (RRV and Code 29 lifting certificate) renewed not later than 15 February 2019; ordered Transnet to “re-do the appointment process” in respect of employment to the position of Track Inspector at Millsite, Krugersdorp; and ordered Transnet to pay Mr Coetzee the amount of R20 000,00 as compensation for an unfair labour practice by no later than 31 January 2018.

[2]   Mr Coetzee had brought a claim for an unfair labour practice in respect of the decision not to promote him to the position of Track Inspector, but instead to promote Mr Mathekgane and Mr Dube.

[3]   The approach that ought to be taken by arbitrators or commissioners dealing with unfair labour practices relating to promotion is as follows. An employee has no right to promotion in the ordinary course. He or she only has a right to be given a fair opportunity to compete for a position. An exception exists where there is a contractual or statutory right to promotion.

[4]   Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post, the selection process may be scrutinised to to determine whether the appointment was arbitrary, irrational or motivated by an unacceptable reason.

[5]   The corollary of this principle is that, as long as the decision can be rationally justified, any error in the promotion process is unlikely to constitute unfairness or an unfair labour practice. Since there is no right to promotion in the ordinary course, the appropriate remedy, as a general rule, is to set aside the decision and refer it back to ensure that a fair opportunity is provided. There are exceptions, for example where there is discrimination or victimisation or compelling constitutional interests are at stake. It also does not apply if the applicant can prove that but for the unfair conduct, he would have been appointed.[1]

Legal principles and argument

[6]   The test for review of decisions made by Commissioners in unfair labour practice proceedings relating to promotion remains one whether the Commissioner misconceived the nature of the enquiry, or arrived at an unreasonable result[2]. A result will be considered unreasonable if it is one that a reasonable Arbitrator could not reach on all the material presented to him or her[3].

[7]   In the unfair labour practice dispute Mr Coetzee’s main contention was that Transnet’s decision to promote Mr Mathekgane and Mr Dube to the post of Track Inspector instead of him was motivated by an unacceptable reason or was irrational. In substance, his case was that the criteria for the appointment to the position of Track Inspector, as set by Transnet, included certain minimum qualifications. Transnet also indicated that it would offer preference to suitably qualified applicants who fell within the criteria for preference in line with the relevant division’s Employment Equity Plan.

[8]   Mr Coetzee contends that he met the minimum criteria whereas Messrs Mathekgane and Dube did not. They were not suitably qualified for the purposes of preferment.

[9]   In justification of the decision Transnet management or Mr Coetzee’s competitors for the position altered the requirements for appointment to the position in order for the two of them to qualify. In colloquial terms Transnet either moved or permitted the “goalposts” to be moved so as to appoint Messrs Mathekgane and Dube and not Mr Coetzee.

[10]   Mr Coetzee further contends that insofar as Transnet preferred Mr Coetzee’s two competitors on the basis they were black, this was not done in terms of any acceptable preferment process for Employment Equity. The entire selection process was therefore tainted by unfairness and Transnet had no rational or acceptable justification for selecting Messrs Mathekgane and Dube instead of Mr Coetzee.

[11]   The Commissioner largely accepted this argument. He found on a balance of probabilities that the advertisement setting out the requirements for the Track Inspector position which Transnet relied upon “was not legitimate” and had been “tampered with in some way” so as to reflect that the minimum qualifications which had been initially set out were not required at the time of appointment, but could be acquired subsequently. He found on a balance of probabilities that Transnet’s explanation that Mr Coetzee was excluded from appointment due to the application of Employment Equity targets was irrational and without merit on the basis that the Employment Equity plan did not comply with the minimum requirements of the Employment Equity Act[4], and was “probably improperly obtained”. Implicit in the finding is that Transnet exhibited bad faith in the appointment process and the justification thereof.

[12]   Transnet attacked these findings and the ultimate conclusion of the Commissioner that Transnet had committed an unfair labour practice in the promotions exercise. The decision was therefore alleged to be reviewable.

Analysis

[13]   I cannot find that the Commissioner either misconceived the nature of the unfair labour practice enquiry he was considering, nor can I agree that his decision was unreasonable. In fact, the approach of Transnet in respect of the promotion supports the conclusion that it moved the goalposts so as to prefer some employees rather than others in a manner that was manifestly unfair. Transnet’s approach and justification is to be deprecated.

[14]   During the arbitration Mr Coetzee introduced into evidence a copy of an advertisement which set out the minimum requirements for appointment to the position of Track Inspector. These included that the candidate required a C1 driver’s licence, an RRV certification and a code 29 lifting certificate. A Track Inspector was required to operate a Road Rail Vehicle (RRV), which is a vehicle which operates both on the road and on a railway line. The advertisement was adduced to prove that these minimum requirements were applicable to the candidate for promotion to Track Inspector.

[15]   The respondents (Transnet and the two employees who were appointed) submitted a different version of the advertisement. In the advertisement submitted by the respondents the requirement was for the candidate to have a code B driver’s licence and that the RRV certification and code 29 lifting certificate were not necessary requirements at the time of appointment, but could be obtained after the candidate had been promoted. The commissioner pointed out that this second certificate “did not make sense” as the requirement of a code B driver’s licence authorised the holder to drive an ordinary commercial vehicle and did not authorise the holder to drive the RRV, for which a C1 licence was necessary. One of the witnesses called for the respondents in the arbitration, Mr Maluleke, said that he suspected that the document was the product of “some fraud… or something else”.

[16]   Accordingly, the evidence before the commissioner was that Messrs Mathekgane and Dube had been appointed without meeting the minimum criteria and that a fraudulent document which wrongly indicated the minimum requirements for the post had been introduced for the purposes of misleading the arbitration. Insofar as the required qualifications, those were in the advert put up by Mr Coetzee, and further that the two candidates did not meet all the criteria.

[17]   Transnet argued, however, that even Mr Coetzee did not meet the minimum criteria or qualifications as set out in the apparently legitimate advertisement. It was alleged that Mr Coetzee’s code 29 certificate and RRV certification had lapsed. Mr Coetzee’s response to this was that he had been acting as a Track Inspector, using the equipment for many years and his qualifications and certification had been accepted when the depot was audited for safety compliance. He averred - and it was conceded by a witness called by Transnet - that the responsibility for licencing and ensuring licences and qualifications were kept up to date lay with Transnet as the employer. Inasmuch as the certificates had lapsed this was the fault of Transnet.

[18]   For Transnet to justify Mr Coetzee’s non-appointment on the basis that he failed to have current certifications when the responsibility for this lay with Transnet itself is galling. To appoint persons who failed to meet the minimum qualifications for the job and rely upon a misrepresentation concerning the requirement for those qualifications lacks integrity. It is manifestly unfair.

[19]   Transnet further justified the appointment of the two candidates and not Mr Coetzee on the basis also that the Employment Equity criteria for employment had been applied. The criteria used were said by Transnet to have been those of the local Krugersdorp management and had been set approximately a month after the promotion applications were submitted. These were not the company-wide or even divisionally approved criteria. The local criteria took effect from October 2016. However, Mr Van As, representing Mr Coetzee submitted, the date for consideration of the promotion was 16 September 2016, approximately a month earlier. Transnet purported to rely on criteria which had not yet come into effect.

[20]   If that were not enough Transnet also failed to comply with its own policy which was stated in the advertisement to provide preference to “suitably qualified” applicants in line with the plan of that Transnet division. Neither Mr Mathekgane nor Mr Dube were “suitably qualified” applicants, nor was the Krugersdorp management’s preferment of them in terms of the divisional plan of Transnet.

[21]   In the circumstances, it is difficult not to conclude that the promotion exercise was a grossly unfair one. The reasons advanced for bypassing Mr Coetzee and appointing Messrs Mathekgane and Dube were apparently dishonest and irrational. The commissioner was entitled then to make a finding that the promotion process and its outcome was an unfair labour practice and set the promotion aside, at the same time requiring the process to be re-commenced fairly.

[22]   In my view, therefore, the decision of the Commissioner was not unreasonable. His award was not defective or open to review under the provisions of the Labour Relations Act[5]. The application must therefore fail.

Costs

[23]   Neither party sought costs in respect of the review application. There is an ongoing relationship between the union representing Mr Coetzee and Transnet.

[24]   In the premises the following order is made:

Order

1.   The application for review is dismissed;

2.   There is no order as to costs

A. Redding

Acting Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant:

Instructed by:

On behalf of the Respondent:

Instructed by:

 

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