Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v Khanya and Others (DA9/2012) [2014] ZALAC 48 (18 September 2014)

Principle:

It is the employer's prerogative to set the inherent requirements for a job but these may not conflict with the LRA or Constitution.

Facts:

A Code 15 licence to ride a motor cycle was listed as an inherent requirement for promotion to the rank of sergeant. Various unsuccessful applicants filed grievances that the process was unfair. A disabled applicant unable to ride a motor cycle grieved because this inherent requirement effectively prevented him from ever being promoted. Female applicants grieved because the weight of the motor cycles made it difficult (but not impossible) for them to get the required Code 15 licence.

The arbitrator found that the promotion was both substantively and procedurally fair, and this was confirmed by the Labour Court. On appeal to the LAC, it was confirmed that the LC correctly found that it remains the employer's prerogative to set the standard for its employees as long as these inherent requirements did not conflict with either the LRA or the Constitution.

Extract from the judgment:

Dlodlo AJA

[29]   Seemingly it is a critical contention at the heart of the aggrieved employees who were not shortlisted that a motorcycle licence is not an inherent requirement for the job of Sergeant. The above contention is premised on what Joseph Khanya testified to as the primary responsibility of Sergeant at the Metro Police. Mr Khanya's evidence summarised above inter alia is to the effect that even Sergeants that supervise motorcycle patrols do not do so on motorcycles but they use motor vehicles. He referred to the group he called "most competent motorcycle riders" that are utilised to escort Presidents of the Country and the Premiers and testified that they too discharge their duties in motor vehicles. I undertake to deal with all this later on in this judgment.

.....................................................

[34]   The Court a quo correctly found that it remains the employer's prerogative to set the standard for its employees (although in this case the employers hand was forced by its employees who won an arbitration award requiring the employer to force the requirement of a code 15 motorcycle licence for the position of Sergeant). The setting of the requirement of code 15 licence for the position of Sergeant does also not conflict with the provisions of either the Constitution or the LRA. Certainly to require code 15 licence for the post of Sergeant as an essential requirement is and cannot amount to unfair labour practice as contended by the aggrieved employees. I share the view of the Court a quo that the essential requirement for the post of Sergeant cannot also be said to be aimed at excluding female candidates. In any event, that was not for the arbitrator to deal with as this also was an issue of discrimination which the arbitrator could not determine.

[35]   The materials which the arbitrator was obligated to consider before arriving at a decision in this matter I have summarised earlier. I may add that this Court in Fidelity Cash management Service v CCMA held:

'It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA Commissioner, the Court feels that it would have arrived at a different decision or finding to that reached by the Commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the Commissioner and that the system would never work if the Court would interfere with every decision or arbitration award of the CCMA simply because it, that is the Court, would have dealt with the matter differently...'

I fully agree with the above. Very often one is inclined to interfere with the arbitrator's awards and very often it is left out of account that there are a range of reasonable findings the arbitrator can arrive at after taking into consideration all the material factors presented before him.

[36]   One indeed must be conscious whenever one is called upon to review the arbitrator's award. Hence a strict application of the test enunciated by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others(2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) needs to be adhered to. The review Courts must adhere to the simple formulated test in the above authority: "Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach?" There have been decisions after Sidumo matter but none can be said to postulate the test any differently. For instance in Afrox Healthcare Ltd v Commission for Conciliation, Mediation and Arbitration and Others this Court per Mlambo JP held as follows:

'The fact of the matter is that the reasonable decision-maker yardstick crafted in Sidumo, viewed in proper context, is none other than that in the absence of a 'rational objective basis' (the Carephone test) between the decision arrived at and the material placed before the decision-maker, the relevant decision is clearly not one which a reasonable decision-maker would have arrived at.'

The judge in the Court a quo was alive at the correct test and its proper application. The judge correctly approached the review and "travelled on the correct path" in respect of facets of this matter save for the issue pertaining to Mr Khanya.