Arries v CCMA & others (2006) 27 ILJ 2324 (LC)
JUDGMENT
NEL AJ:
[1] The applicant (Ms Arries) seeks to review the award of the second respondent (the commissioner) handed down on 24 February 2004 in the first respondent (the CCMA) under case no WE9364-03.
[2] The applicant referred a dispute to the CCMA relating to an unfair labour practice dispute pertaining to the third respondent's failure to promote her to the position of assistant general manager. As it is apparent that this dispute involves both the third respondent and one of its trading entities, the Beacon Island Time Share Resort, I will interchangeably refer to 'the third respondent' and to its trading arm as 'the Beacon Island Hotel' as the circumstances may dictate.
[3] At the arbitration the matter was unopposed. The commissioner issued an award concluding that the third respondent had not committed an unfair labour practice and that Ms Arries was accordingly not entitled to any relief. It is necessary to provide a brief overview of the evidence before the commissioner.
[4] Ms Arries has been a long-serving employee of the third respondent and has been employed in a number of positions over the years in different operations within the third respondent. In June 1987, she at her own instance left the Beacon Island Hotel to pursue other interests. She recommenced her employment with the third respondent on 25 November 1988, and was at the time of the arbitration serving as the accommodation services manager at the Beacon Island Hotel. But for a short period of about a year as a teacher, Ms Arries has accordingly since 1988 been employed by the third respondent. In September 2000, after Ms Arries had been assessed, she was viewed as being earmarked for a management level position and at the time of the arbitration she was at the grade of an assistant general manager.
[5] It is apparent that Ms Arries had made numerous attempts to secure a higher position by applying for posts within the third respondent. In this process she applied for the position of deputy general manager, rooms, at the Holiday Inn, Garden Court (HIGC) in Oudtshoorn in September 2000. In November 2000, she applied for a position as deputy general manager at the HIGC in Wilderness. In March 2001, she applied for a position as front office manager at the Cullinan Hotel in Cape Town. In April 2002, Ms Arries applied for the position of assistant general manager at the Beacon Island Hotel. She was unsuccessful in all these applications and lodged a grievance on 29 April 2002 wherein she addressed her concerns and the desired outcomes she required.
[6] In her grievance, Ms Arries alleged that she had been told by the then general manager of the Beacon Island Hotel that she would never receive any promotion at the third respondent. He also, according to Ms Arries, indicated that he would see to it that she remained in her present position.
[7] Mr Kearns, the regional human resources manager of the third respondent, considered Ms Arries's grievance. A meeting between him and Ms Arries took place on 30 May 2002 and having been requested that Mr Kearns should confirm the essence of their meeting in writing, he did so in a letter addressed to Ms Arries on 25 June 2002.
[8] Mr Kearns in this correspondence confirmed that he held the view that Ms Arries attached exaggerated importance to the role played by any general manager in relation to transfers and/or promotions. He recorded his view that Ms Arries's failure to secure the positions which she had applied for was a result of her lack of management and management experience. He further recorded that the glowing or indifferent references from her departments would have no material effect on her candidacy for such positions. Mr Kearns suggested that Ms Arries should move into a room related assistant general manager position for a period of some 18 months. He expressed the view that, pursuant to her successful fulfilment of the requirements of such a position, it would become possible to consider her suitability for further advancement.
[9] As Ms Arries took issue with Mr Kearns's recommendations, she requested that her grievance be taken further. In July 2002, Ms Arries met with the third respondent's regional human resources executive. As she was also not satisfied with the outcome of the grievance procedure at this level, Ms Arries asked that her grievance be advanced to the next stage. The third respondent did so and in August 2002, Ms Arries met with the third respondent's human resources director, Mr Lamprechts. After the meeting, Mr Lamprechts advised Ms Arries in writing in August 2002, that 'having regard to the nature of (Ms Arries's) submissions and (his) own evaluation of (r) work history, training and experience' he could not reconcile her contentions that she was victimized with evidence which demonstrated that she was simply not a suitable candidate for the position of an assistant general manager.
[10] It would appear as if this failure to resolve Ms Arries's grievance led to her, on 1 October 2002, referring a dispute to the CCMA. Subsequent to the referral of her dispute to the CCMA, Ms Arries was again unsuccessful, in January 2003, in applications for the position of assistant general manager at two of the third respondent's hotels. In March and May 2003, she was also again unsuccessful in applications for the position of assistant general manager at the Beacon Island Hotel.
[11] In July 2003, Mr Kearns addressed another letter to Ms Arries. Herein Ms Arries was advised again to seek a position in a mainstream operational role, like front office management. The intention of this proposal was that Ms Arries should hold this position and gain experience and competency before she applied for another position of assistant general manager. Ms Arries however held the view that she had more than enough experience. Mr Kearns indicated that the third respondent was investigating certain possible opportunities that may become available. Ms Arries was invited to indicate the geographical areas in which she would be prepared to work. Ms Arries's response to this was that she contended that a front office position would amount to a demotion for her. Ms Arries accordingly did not accept Mr Kearns's advice to seek a position in a mainstream operational role.
[12] This, in brief, is the background against which the commissioner assessed the matter before him.
[13] Before me, Ms Norton, on behalf of Ms Arries, contended that the commissioner's award should be reviewed and set aside by reason essentially of two considerations.
[14] The first attack was on the basis that the commissioner's findings were not rational in relation to the evidence presented before him and that the only rational conclusion on the facts and the law was that the Beacon Island Hotel had committed an unfair labour practice by failing to promote Ms Arries to the position of assistant general manager.
[15] The second attack on the commissioner's award was on the basis that the commissioner, so it was argued, had accepted the Beacon Island Hotel's version as it appeared from documents submitted at the arbitration in the instances where Ms Arries's evidence conflicted with the version contained in the documents. As the Beacon Island Hotel did not attend the arbitration, and accordingly did not present a version, Ms Norton contended that the Beacon Island Hotel's version ought not to have been so preferred at all. Ms Norton further complained that, although the commissioner had heard the oral evidence of Ms Arries (and made no adverse credibility findings in respect thereof), he nevertheless based his finding squarely on the views expressed by the Beacon Island Hotel in documents made available by Ms Arries at the hearing, in particular correspondence between Ms Arries and the third respondent. Accordingly Ms Norton argued that, in approaching the views expressed in the documents (by the third respondent) as if they were admissible evidence, the commissioner had committed a gross irregularity. Further, so it was argued, by basing his findings on the views expressed by the third respondent's employees in the documents, the commissioner committed a further gross irregularity.
[16] What Ms Arries sought to persuade the commissioner of was to interfere with the merits of a discretion exercised by her employer whether or not to promote Ms Arries. I accordingly first considered how our courts generally have approached the question of interfering with a discretion which has been exercised by another party. Then I looked at how this has been approached in the employment jurisprudence. A consideration of this question discloses that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. Interference with the discretion of an employer is, in my view, akin to the interference on appeal with a discretion exercised by a court of law. In this regard Holmes JA in Rondalia Insurance Corp of SA Ltd v Page & others 1975 (1) SA 708 (A) at 720C, in relation to the exercise of a discretion pertaining to costs, said that - 'a Court making an order as to costs has a discretion to be exercised judicially on a consideration of all the facts; and in essence it is a matter of fairness to both sides. The power of interference on appeal is therefore limited to cases of vitiation by misdirection or irregularity, or the absence of grounds on which a court, acting reasonably, could have made the order in question'.
[17] Taking this proposition further, and applying what our courts have said in this regard to the employment field, I am of the view that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner (see Rex v Zackey 1945 AD 505 at 513; Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398; Ex parte Neethling & others 1951 (4) SA 331 (A) at 335D; Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 781J and 783C; Shepstone H & Wylie & other v Geyser NO 1998 (3) SA 1036 (SCA) at 1045A).
[18] This approach, I believe, is consistent with the test applied by judges sitting in the Labour Court and commissioners of the CCMA when considering the principles applicable to interference with an employer's decision in relation to the promotion or non-promotion of employees.
[19] So one sees that in the matter of Public Servants Association on behalf of Botes & others v Department of Justice (2000) 21 ILJ 690 (CCMA) at 698G, Commissioner Hiemstra said that, in considering whether the employer had acted unfairly (in failing or refusing to promote an employee), one must consider the reasons for the actions of the employer and only interfere with the employer's discretion if it acted frivolously or capriciously or unreasonably.
[20] In the matter of Ndlovu v Commission for Conciliation, Mediation & Arbitration & others (2000) 21 ILJ 1653 (LC) at paras 11-12, Wallis AJ said:
'In my view, the questions which the commissioner asked in the first paragraph of that quotation were wholly justifiable questions in relation to a dispute over a matter of promotion. It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.[21] Jammy AJ in Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paras 29-32, said:
The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise.'
'There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process.... Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this as area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.'[22] This court has been prepared to interfere with an employer's decision in relation to a decision to promote a particular person on the basis that there was a 'serious irregularity' in an appointment process. (See National Commissioner of the SA Police Service v Safety & Security G Bargaining Council & others (2005) 26 ILJ 903 (LC) at 908 para 12.)
[23] Ever mindful that I am to be persuaded that the commissioner committed an irregularity and/or misconducted himself in the conduct of the arbitration, I was alerted to the fact that these very legal principles which I have just referred to were also identified by the commissioner as being the ones which he had to assess in the matter before him. In doing so, one sees that the commissioner referred to the matter of SA Municipal Workers Union obo Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA), where the commissioner held that the onus was on the union to examine the reasons why its I member was not appointed and to identify defective reasoning on the part of the appointing authority. It was further held in this matter that unless the appointing authority was shown not to have applied its mind in the selection of a successful candidate, there was no basis for interference with the prerogative of the employer to appoint whom it considered to be the best candidate.
[24] It was further pointed out in argument before me by Mr la Grange, who appeared on behalf of the third respondent, that the commissioner also relied on the case of Van Rensburg v Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA) where, at 1426F, it was stated that an arbitrator may only interfere with a decision of an employer in the event that the conduct of the employer was so grossly unreasonable as to warrant an inference that the employer had failed to apply its mind to the matters concerned.
[25] I believe that it is against all of these principles applicable where the exercise by an employer of its discretion whether or not to promote an employee is concerned that I have to assess whether the commissioner has perpetrated a reviewable irregularity, or misconducted himself, or exceeded his powers.
[26] Returning to the applicant's arguments, I understood Ms Norton to have argued along the following lines. Where an employee applies for a job and has established her objective suitability for the position, if she is not appointed to the position, an explanation by the employer is called for why it did not promote the employee to that position. In the absence of such explanation, unfairness will have been established. It was, based on this premise, contended by Ms Norton that, as the commissioner accepted Ms Arries's factual evidence (that she was suitable for the position she had applied for) and made no adverse credibility findings in respect thereof, in the absence of evidence in rebuttal from the third respondent, two inferences arose, namely that the third respondent had unfairly failed to establish whether Ms Arries in fact did have the necessary experience, alternatively, that the third respondent had other, unfair reasons for failing or refusing to promote Ms Arries. It was accordingly argued by Ms Norton that, as Ms Arries had at the very least made out a prima facie case that she was qualified to be appointed as an assistant general manager, in the absence of rebutting evidence from the third respondent, Ms Arries established the basis for an inference by the commissioner that the third respondent's failure or refusal to promote her was unfair.
[27] In these circumstances, so Ms Norton argued, the commissioner's award was based on flawed reasoning and was clearly not rationally justifiable in relation to the reasons given for it.
[28] In response hereto, Mr la Grange submitted that this approach is wrong as it requires the commissioner to consider the merits of the third respondent's decision as though he were the employer (ie replacing the employer's discretion with his own). Mr la Grange argued that, in order to demonstrate that the commissioner's conclusion (that interference with the third respondent's decision not to promote Ms Arries was not warranted) was irrational, Ms Arries had to show that the only conclusion that could be drawn (by the commissioner) from the evidence presented before him, was that the third respondent exercised its managerial prerogative capriciously or frivolously pursuant to a failure to apply his mind thereto or for insubstantial reasons, based on wrong principle or in a biased manner.
[29] I am of the view that the approach which the commissioner was compelled to take was in effect to determine whether the employer exercised its managerial prerogative (its discretion), to use the commissioner's words 'on the basis of some unacceptable, irrelevant or invidious comparison'. The commissioner's approach on this aspect cannot in my opinion be faulted.
[30] This self-same proposition could be stated along the lines that the commissioner was called on to determine whether the employer had exercised its discretion (managerial prerogative) capriciously, or frivolously or pursuant to a failure to apply its mind thereto, or for insubstantial reasons, or based on any wrong principle or in a biased manner.
[31] Before I can assess whether the commissioner's conclusions are justifiable having regard to the reasons given therefor, I need to address the question whether the commissioner, in determining these issues, was entitled to have regard to the documentary evidence presented to him by Ms Arries with particular reference to the reasons contained therein from the third respondent why it had refused to promote Ms Arries.
[32] It was contended on behalf of Ms Arries that the commissioner's reference to documents submitted at the arbitration was irregular. In this regard it was argued before me that Ms Arries, in the arbitration, made no admissions as to the truth of the contents of the documents insofar as they contained the views expressed and reasons proffered by the third respondent in respect of the non-promotion of Ms Arries. Accordingly, so it was argued, without such an admission, the contents of the documents were not evidence, let alone admissible evidence.
[33] The reasons for the third respondent's failure to promote the applicant were provided by it to Ms Arries in the numerous correspondences it directed to her. As I understand Ms Arries's case, she submitted to the commissioner the correspondence containing the reasons given by the third respondent why it did not promote her. Ms Arries then proceeded, inter alia, to adduce oral evidence before the commissioner why the reasons put forward by the third respondent for failing or refusing to promote her were unacceptable and should accordingly be rejected by the commissioner, thus allowing the commissioner to interfere with the decision by the third respondent not to promote Ms Arries.
[34] When a party presents documents to a tribunal, without admitting the truth of the contents, but then proceeds actually to present evidence attacking the very contents of the documents, I am of the view that the contents of these documents which a party has attacked have been introduced by the party and have become admissible evidence.
[35] A perusal of the record also discloses that the applicant, on presenting the bundle of documents to the commissioner, did not expressly indicate that she did not admit the contents of the documents. With reference to the correspondence containing the reasons given by the third respondent for not promoting Ms Arries, one sees that, when asked by the commissioner to deal with these reasons, Ms Arries invariably did not agree with the reasons given by the third respondent (for not promoting her). She did not as such deny the contents of the documents. She simply gave evidence which was to the effect that, these were the reasons her employer had given her for failing or refusing to promote her and adducing evidence why she rejected or did not accept those reasons.
[36] I am accordingly of the view that the very purpose with which Ms Arries presented the bundle of documents to the commissioner was to put the reasons given by her employer for refusing or failing to promote her as contained in the documents before the commissioner and then to attack the soundness of these reasons, in order to persuade the commissioner that, notwithstanding the reasons put forward by her employer why it failed and/or refused to promote her, the conduct of her employer was nevertheless unfair.
[37] Accordingly, I am of the view that with Ms Arries having put the documents before the commissioner and having dealt with the contents of documents in evidence, this entitled, if not obliged, the commissioner to have regard to the contents of the correspondence, specifically insofar as it contained the reasons given by the third respondent for not promoting Ms Arries, in order to determine whether the third respondent's decision not to promote Ms Arries could be found to be capricious, insubstantial or based on wrong principles or disclosed grossly unreasonable conduct on the part of Ms Arries's employer in failing or refusing to promote her.
[38] Putting this proposition differently, just as Ms Arries deemed it necessary to rely on the contents of the documents she presented to the commissioner to adduce evidence as to why the reasons put forward therein by her employer did not justify its conduct, likewise the commissioner deemed it necessary, and as I said was in my view compelled to consider those reasons, contained in the correspondence, to determine whether the third respondent's conduct made it guilty of an unfair labour practice in respect of its failure or refusal to promote Ms Arries.
[39] Obviously, if a party who has introduced the contents of documents then gives oral evidence contradicting factual allegations contained in these documents, it is difficult to imagine a circumstance where, in the absence of rebutting oral evidence from the party who made the allegations contained in the documents, the trier of fact will reject the uncontested evidence of the party before him. This is not in my view what happened in the present instance. An analysis of the commissioner's award provides no indication that he at all accepted the contents of the documents and rejected the evidence of the applicant. He simply assessed the reasons given by the employer as were contained in the documents presented by Ms Arries to establish whether, having regard to the evidence adduced by Ms Arries, he could conclude that the third respondent had been shown to have committed an unfair labour practice.
[40] I am of the view that the commissioner first of all correctly analysed the legal principles applicable to a matter where he was asked to interfere with an exercise of a discretion by an employer. The commissioner then had regard to the reasons put forward by the third respondent (as contained in the documents) as to why it refused to promote Ms Arries. He did so to ascertain whether these reasons demonstrated, to use some of the commissioner's own words and/or the principles he referred to, that:
- '(Ms Arries) was overlooked on the basis of some unacceptable, irrelevant or invidious comparison (on the part of the third respondent)';
- the conduct of the third respondent was 'discriminatory or activated by bad faith';
- 'the employer had acted unfairly towards' Ms Arries;
- there was 'defective reasoning on the part of (the third respondent)';
- the third respondent 'has not applied its mind' to the question of Ms Arries's promotion;
- the third respondent acted 'arbitrary, capricious, or inconsistent(ly), in bad faith' when not promoting Ms Arries;
- the third respondent acted 'so grossly unreasonably as to warrant an inference that they failed to apply their mind (to the promotion of Ms Arries)'.
[42] I am of the view that the reasons of the third respondent contained in the documentary evidence introduced by Ms Arries, and to which Ms Arries referred in her evidence before the commissioner, insofar as these reasons were not expressly rebutted, but simply disagreed with by Ms Arries as constituting valid reasons for the third respondent's refusal to promote her, it constituted admissible evidentiary material which the commissioner was entitled to have regard to and to consider in arriving at his conclusions.
[43] As I am satisfied that the commissioner did not commit any irregularity whatsoever in considering the reasons of the third respondent contained in the documents for not promoting Ms Arries, I proceed to assess whether the commissioner's award was based on flawed reasoning and not rationally justifiable in relation to the reasons given for it.
[44] In the matter of Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) at 1617A-F, the Labour Appeal Court per Zondo JP confirmed that an enquiry to establish whether an award is justifiable in relation to the reasons given for it, constitutes a valid extension of s 145(2)(a) (iii) of the LRA. (In this regard also see Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC).)
[45] In County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (1999) 20 ILJ 1701 (LAC) at 1712 para 27,
Ngcobo AJP circumscribed the test to be applied to determine whether a decision is justifiable in the following way:
'The constitutional requirement that administrative action must be justifiable in relation to the reasons given for it means no more than that the decision of the commissioner must be supported by the facts and the applicable law. The reviewing court must ask itself whether the award can be sustained by the facts and the applicable law. If the award can be sustained by the facts and the law, interference with the award is not warranted. If it cannot, interference is warranted.'[46] I am of the view that the commissioner's award herein is sustainable both by the facts and the applicable law. In this regard I have already indicated that, as far as the facts considered by the commissioner are concerned, I am satisfied that the commissioner acted properly in considering both the oral evidence adduced before him as well as the relevant parts of the contents of the documents which the applicant produced and in evidence before the commissioner referred to, and commented on.
[47] As far as the applicable law is concerned, I believe that the commissioner correctly approached the matter before him, namely in the first instance, as he put it, treading warily. He further was correct in approaching the matter, in essence, on the basis of making a determination whether the third respondent's refusal to promote Ms Arries was: on the basis of its having acted on the basis of some unacceptable, irrelevant or invidious comparison on the part of the third respondent; or that its decision was arbitrary, or capricious, or unfair; or that they failed to apply their mind to the promotion of Ms Arries; or that the third respondent's decision not to promote Ms Arries was motivated by bad faith; or that it was discriminatory.
[48] All of these aspects which the commissioner clearly had in mind in reaching his conclusion are in my view in essence a proper search by the commissioner to determine whether the third respondent's discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
[49] I do not agree that the commissioner had merely accepted the Beacon Island Hotel's version as it appeared from documents submitted at the arbitration in the instances where Ms Arries's evidence conflicted with the version contained in the documents. As I have said, Ms Arries presented the reasons given by the third respondent and she did so with reference to the reasons contained in the documents she introduced at the arbitration. The commissioner was compelled to consider these reasons to determine whether he could arrive at a conclusion that the third respondent's conduct in any way warranted an interference by him with what he correctly regarded as the exercise of a discretion by an employer. I nowhere have seen the commissioner rejecting the evidence of Ms Arries. Having had regard to the reasons of the third respondent contained in the documentation, and clearly also having had regard to the fact that Ms Arries had in essence disagreed with these reasons, the commissioner simply was unable to find any grounds being present, which he needed to be satisfied on were present, which would have enabled him to interfere with the employer's exercise of its discretion. The commissioner cannot in my opinion be faulted at all in this regard.
[50] I am also of the view that the commissioner's findings are rational in relation to the evidence presented before him and the reasons given for his conclusions.
_____________________________________________ In the result the application is dismissed and the applicant is ordered to pay the third respondent's costs of suit herein.
| Applicant's Attorneys: | Malcolm Lyons & Brivik Inc. | |
| Third Respondent's Attorneys: | Deneys Reitz Attorneys. |
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