IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

	Not Reportable
case No: JR 265/20

In the matter between:

ESKOM HOLDINGS LTD	                          Applicant

and

SOLIDARITY obo aNUSHA GOVENDER	 1st Respondent

CHRISTINA NOMSA MQCINA	2nd Respondent

COMMISSIONER WILLEM KOEKEMOER N.O                         3rd Respondent	

CCMA 	4th Respondent

Heard:	16 August 2022
		
Delivered:  	02 November 2023

Summary:	Review application-whether the arbitrator’s award is the one a reasonable decision maker ought to have reached. The award is reviewable as arbitrator misconstrued crucial evidence before him as the employer acted fairly. The employer created no legitimate expectation and there was no evidence to the contrary. Held: (1) The review application is upheld. (2) Award under case number GAJB25501-17 handed down on 17 October 2019, is reviewed and set aside. (3) The employer committed no unfair labour practice against the employee. (4) There is no order as to costs.

JUDGMENT

SETHENE AJ 

Introduction 

“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If the decision or conduct is not established, that is the end of the matter.”

[1]	If there was a hopeless claim of unfair labour practice against the employer, this is one. It has all the hallmarks of a case laden with moral merits but unmeritorious in law and fact. 

[2]	Is the employer legally obliged to appoint an employee by the mere fact that he/she has been acting in a vacant position and is referred to with the title of that position? Does it mean when the employee acting in the said position is referred to with the title of the said position creates legitimate expectation by the employer to appoint or promote the employee when there are candidates who are more academically qualified than him/her, with the requisite experience and expertise? A stern NO is an answer to all these question.

[3]	Eskom (“the Applicant/Eskom/employer”) has approached this court to review and set aside the decision of Commissioner Willem Koekemoer (“the Commissioner/Third Respondent”) handed down on 17 October 2019, bearing case number GAJB25501-17, under the aegis of the CCMA. Eskom contends that the Commissioner ought to have found that it committed no unfair labour practice against Ms Anusha Govender (“the employee/Ms Govender”) in not appointing her to a vacant position she was acting on. It further contends that the arbitration award is not one a reasonable arbitrator acting correctly would have reached premised on the facts before him.

[4]	Solidarity, a trade union registered in terms of s 96 of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, acting on behalf of the employee opposes this application and contends that the Commissioner arrived at the correct decision when he found that Eskom committed unfair labour practice in not appointing the employee. The second, third and fourth respondents filed notices to abide.

[5]	Eskom instituted this application sixty-six (66) days late and accordingly sought condonation. In fairness, Eskom advanced cogent reasons for the lateness in instituting this application and having considered its submissions, Eskom’s condonation application is in the interest of justice duly granted. 

Salient background facts

[6]	On or around 2015, following the organisational review of the structure within the Security Division at Eskom, a vacant senior managerial position of Senior Business Enablement Manager (“the position in issue”) was created. Once the organisational structure was adopted around 2016, the adopted structure had to be implemented by means of appointing employees to act in positions created as a result of the review of the structure whilst recruitment process was underway. 

[7]	Ms. Govender’s substantive position within the Security Division is: Middle Manager Security Investigations. However, during the implementation of the structural changes at the security division, Ms. Govender was appointed to act in the position in issue effective from 1 September 2016 to 17 May 2017. During Ms. Govender’s acting stint, the position in issue was advertised on 6 February 2017. The employee applied and was shortlisted and duly interviewed on 27 February 2017. According to the interview scores by the interviewing panel, none of the panel members scored Ms. Govender higher than the second respondent, Ms. Christina Nomsa Mqcina (Ms. Mqcina). Ms. Govender was scored 22 whilst Ms. Mqcina 34.

[8]	On 7 March 2017, Ms. Govender was informed that she was unsuccessful in her application for the position in issue. On 20 April 2017, Ms. Govender addressed an email to the Human Resources Division and in particular, to Mr. David Du Toit (Mr. Du Toit) stating the following:

“From: Anusha Govender
Sent: 20 April 2017 01:12 PM
To: David Du Toit
Subject: INTERVIEW-BUSINESS ENABLEMENT (REQUEST FOR INTERVIEW RESULTS)

Hi David
I was informed by Gen Rakau on 7 March that I did not get the Business Enablement Senior Manager position. Can I please have detailed feedback on my application/interview results so that I can identify my shortcomings for development purposes.
Tx
Regards,
Anusha Govender
Middle manager
Security Governance and Compliance”

[9]	On 10 May 2017, Ms. Govender addressed another email to Mr. Du Toit the contents of which are similar to the email cited in the preceding paragraph safe for an addition requesting reasons why she was not successful and be furnished with same within seven (7) working days. On 5 July 2017, Ms. Govender addressed another email to Mr. Du Toit and copied her union, Solidarity. In the said email, Ms. Govender in the main sought to be furnished with feedback of her application/interview so that she could identify her shortcomings for development purposes and also be furnished with reasons for not being appointed within seven (7) working days. When Ms. Govender could not find any response to her emails, she approached the CCMA for appropriate relief in terms of Rule 29 of the CCMA Rules. 

[10]	At the arbitration proceedings, Ms. Govender alleged that Ms. Mqcina ought not to have been appointed as she is neither qualified to work in the security industry nor had any experience in dealing with security matters.

[11]	To dissect Ms Govender’s claim, it is apt that her academic profile and that of Ms. Mqcina are catalogued. In boxing terms, that would be referred to as the TALE OF THE TAPE:

MS GOVENDER	MS MQCINA	
National Diploma (Police Administration-Technikon SA 1991)	National Diploma: Industrial Engineering-Vaal Triangle Technikon 1998	
Bachelor of Technology (Forensic Investigations-Unisa 2003)	Bachelor of Technology in Industrial Engineering-Pretoria Technikon 2002	
	Bachelor of Science (Honours) Applied Science-University of Pretoria 2004	
	Master of Science: Engineering Management-University of Pretoria	

[12]	Aggrieved by her non appointment to the position in issue, Ms. Govender lodged a grievance in terms of Eskom’s Grievance Policy on 26 May 2017. The desired outcome Ms. Govender sought from the grievance process was for her to either be appointed to the position in issue or as Senior Manager: Security Investigations. She also requested to be compensated for acting in the position in issue. Her grievance was dismissed. 

[13]	Dissatisfied with the dismissal of her grievance following the internal appeal process, Ms. Govender referred her unfair labour practice claim to the fourth respondent for relief. Following the failure of conciliation process, the Commissioner was appointed to preside over the arbitration. The Commissioner, after affording the parties to present their evidence, found that there was an unfair labour practice in Eskom’s failure to appoint Ms. Govender who has been acting in the position in issue. Further, the Commissioner found that Eskom created legitimate expectation to appoint Ms. Govender as she was addressed and referred to with the title of the position in issue and she received bonus whilst she was acting. The Commissioner directed Eskom to compensate Ms. Govender the amount equivalent to nine months’ salary, calculated at R 980 909-28 by no later than 27 October 2019, due to its failure to promote her to the position in issue.

[14]	Eskom, is dissatisfied with the award. Hence, the it launched this present application. 

The award

[15]	In the main, the Commissioner found that the non-appointment or promotion of Ms. Govender by Eskom to the position in issue constitutes an unfair labour practice and compensation equivalent to Ms. Govender’s nine months’ salary was just and equitable in the circumstances. The Commissioner also found that Eskom created legitimate expectation which was reasonable to appoint Ms. Govender to the position in issue. The Commissioner reasoned that Eskom did not follow its recruitment procedure when it conducted the recruitment process, in particular, the appointment of the interviewing panel.

Grounds for review

[16]	A review application premised on s 145(2) of the LRA provides that an arbitration award may be reviewed if the Commissioner: (a) has committed misconduct in relation to the duties of the commissioner as an arbitrator; (b) committed a gross irregularity in the conduct of the arbitration proceedings; or (c) exceeded the commissioner’s powers.

[17]	In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae) the SCA made it clear that the review of an arbitration award is permissible if the defect in the proceedings falls within one of the grounds in Section 145(2)(a) of the LRA. The following was stated: 

“For a defect in the conduct of the proceedings to have amounted to a gross irregularity as contemplated by s145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”
[18]	Eskom impugns the arbitration award on the following grounds, namely; (a) there was no legitimate expectation ever created by Eskom; (b) the recruitment process followed due process and was in terms of its policy; (c) commissioner was wrong to find that compensation was warranted; (d) the commissioner failed to consider evidence that was before him; and (e) findings of the commissioner were inconsistent with that of a reasonable decision maker.

[19]	On behalf of Ms. Govender, Solidarity mounts resistance and contends that the reasoning, findings and the award of the Commissioner are consistent with what a reasonable decision maker acting correctly ought to have made. 

Evaluation, Analysis and Law

[20]	Relevant evidence was placed before the Commissioner relating to the creation of the organisational structure, advert for the position in issue, profiles of the candidates, their interview scores and Eskom’s recruitment policy.

[21]	According to the advert for the position in issue, a candidate had to possess the minimum of a three-year bachelor’s degree in business, finance or other related. The candidate had to have been a manager for eight years in business enablement/business support environment. In terms of the advert and the job profile of job description of the position in issue, the incumbent did not have to be a person with security background or qualifications at all. Further, there is no mention either in the advert or job description of the position in issue that required the candidate to be registered with PSIRA.

[22]	The Commissioner ought to have first ensured that Ms. Govender proves that Eskom made an unfair decision in not appointing her as she was more qualified than Ms. Mqcina. In her evidence-in-chief, Ms. Govender emphasised irrelevant points that the position in issue required someone with the requisite security skills, qualifications and expertise. 

[23]	To the contrary, the position in issue required a person who has worked as a manager in a business development environment. Ms. Mqcina was Manager: Business Process Development at Armscor from 2005-2009 (four years). Ms. Mqcina was also appointed Business Processes and Assurance Manager for Armscor from 2009-2013 (four years). From March 2013 to the date of her appointment in May 2017, Ms. Mqcina employed by Eskom as Middle Manager: Business Integration and Performance Management (four years). The Commissioner totally ignored this material information that proved that Ms. Govender was least qualified for the position in issue and by her admission, she had experience and expertise in the security environment. It follows that the Commissioner seemed to have placed weight on irrelevant and immaterial evidence tendered by Ms. Govender. The Commissioner despite the evidence at his disposal, failed to find that Ms. Mqcina’s academic qualifications far surpassed that of Ms. Govender. All the members of the interviewing panel found that Ms. Mqcina to have performed very well during the interviewing process. Nothing from the evidence-in-chief of Ms. Govender and documentary evidence could it be established that it was proved that Eskom’s conduct in not appointing Ms. Govender was unfair in any form. This court in Ndlovu v CCMA & Others held that it is insufficient for the purposes of an unfair labour practice to show an employee was had requisite qualifications. In this regard, the employee must demonstrate with sufficient evidence that the employer’s decision to appoint somebody else was unfair. On that score alone, the reasonable decision the Commissioner ought to have arrived at is that Eskom did not commit an unfair labour practice when it did not appoint Ms. Govender to the position in issue. Besides, by appointing Ms. Govender to act in the position in issue did not connote an automatic right to promotion. 

[24]	In respect of legitimate expectation, the Commissioner misapplied the law applicable to legitimate expectation as a legal concept. The Commissioner found that Ms. Govender was referred to with the title of the position in issue. That is not the test for legitimate expectation in law. Besides, the Commissioner could not point to any documentary evidence from Eskom creating any legal expectation that Ms. Govender would be appointed to the position in issue. In Civil Service Unions v Minister for the Civil Service whereat it was aptly held that:

“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”

[25]	Further, the Commissioner failed to consider the evidence by Ms. Govender that is on the emails dated 20 April 2017, 10 May 2017 and 5 July 2017, where she wanted to be given feedback of her interview/application so that she could identify her shortcomings for development purposes. Nothing in all these emails suggests that Ms. Govender alleged in any form that Eskom ever created legitimate expectation to appoint her in the position in issue. Ms. Govender went on to lodge a grievance against her non-appointment. During her grievance process Ms. Govender made no mention of ever being promised the position in issue. Ms. Govender did not allege that Eskom acted in bad faith in not promoting her and therefore the court cannot intervene in the Eskom’s decision to appoint Ms. Mqcina. 

[26]	If one considers the tale of the tape between Ms. Govender and Ms. Mqcina, there is no need for the ring announcer to announce the obvious. In isiXhosa language, amaMpondomise will characterise this tale of the tape by saying “icace okomva webhokhwe”, loosely translated to mean, the tale of the tape is as clear as day light.

[27]	In the circumstances, the Commissioner knew and ought to have known that there was no legal basis to find any support to a claim of legitimate expectation. During the hearing of this matter in court, I asked the Mr. Mahlangu for Eskom and Ms. Jansen van Rensburg for Solidarity to refer me to any document to give credence to legitimate expectation. Both agreed that there was no evidentiary foundation or proof thereof of any form concerning the creation of legitimate expectation by Eskom to Ms. Govender. On this score alone, the Commissioner ought to have found that Eskom created no legitimate expectation to Ms. Govender.

[28]	In sum, the Commissioner failed to properly apply the law and consider the evidence placed before him and he arrived at the unreasonable or incorrect decision of finding Eskom to have committed unfair labour practice, when it did not. The arbitration award issued by the Commissioner under the aegis of the CCMA stands to be reviewed and set aside. 

[29]	In the premise, I find that the Commissioner’s award is not one a reasonable arbitrator acting correctly ought to have reached. This Court is in as good a position as the Commissioner was. Accordingly, guided by s 145(4) of the LRA, the award stands to be reviewed, set aside and replaced with an order of this Court.

Conclusion

[30]	Recruitment and appointments are exclusive preserves of the employer. When an employer appoints one of its employees to act either in a vacant position or in another employee’s stead, there is no automatic obligation for permanent appointment. From the evidence in the record, Ms. Govender is not a book fearing employee of Eskom. Her non-appointment to the position in issue does not mean she must despair. The next opportunity shall come.

[31]	In the result the following order is made:

Order
1.	The review application is upheld;

2.	The arbitration award under case number GAJB25501-17 issued under the aegis of the Fourth Respondent, is reviewed and set aside; 

3.	It is replaced with an order that the non-appointment of Ms. Anusha Govender to the position of Senior Business Enablement Manager did not constitute unfair labour practice; and

4.	There is no order as to costs.

_______________________
SMANGA SETHENE
Acting Judge of the Labour Court of South Africa

Appearances:
 
For the Applicant:	Adv N Mahlangu
Instructed by:	Mamatela Attorneys 

For the First Respondent:	Ms. M Jansen van Rensburg from Solidarity