Letsogo v Department of Economy & Enterprise Development & others (2018) 39 ILJ 851 (LC)

Principle:

Changing the requirements for a position after the advertisement process and failing to re-advertise the post with the new requirements, will be an unfair labour practice.

Facts:

The department advertised the post of director: consumer affairs, setting out the requirements as a minimum of three years' experience in middle management services (MMS) and computer literacy. The applicant, the deputy-director: consumer affairs, who met the minimum requirements, applied for the position. He, together with six other candidates, was shortlisted. When the selection panel convened it unilaterally changed the minimum requirements by removing the requirement that a candidate had to have MMS experience, and replaced it with the requirement that recognised experience from assistant director level, which was not a MMS position, or similar experience in the private sector was acceptable.

Ms D, who did not meet the original requirements but met the new selection criteria, was then shortlisted for the position. The selection panel recommended her for appointment.

The applicant referred an unfair labour practice dispute to the GPSSBC, contending that the department had committed an unfair labour practice in terms of s 186(2)(a) of the LRA 1995 by not promoting him despite the fact that he was the only person who qualified for the position and by promoting Ms D who did not meet the advertised requirements for the position. The arbitrator disagreed. He found that the original 'managerial requirement' precluded candidates from outside the public service from applying for the position, that this was discriminatory and 'ridiculous', and that the selection panel had correctly addressed this problem in a 'most logical manner' by changing the experience requirement.

The applicant approached the Labour Court to review the award. The court was of the view that the arbitrator had misconceived the enquiry that he needed to undertake - he failed to realise that the selection panel could not meromotu change the requirements for the position. It did not have the power or the authority to do so. The requirements were determined by the executive authority, the minister, and could only be changed by him. This was the first issue the arbitrator had to consider, which he failed to do.

The court was satisfied that the department had committed an unfair labour practice when it changed the requirements for the position and when it shortlisted Ms D, a person who had no right even to apply for the post. It was clear that the selection panel acted unlawfully in subverting the process and also acted unfairly, capriciously and with bias in amending the requirements in a manner which sought to earmark Ms D for the position.

The court found that the arbitration award was irrational - it showed that the arbitrator failed to apply his mind or his reasoning to the issues that were important to determine the matter. He misconceived the necessary enquiry and came to an unreasonable decision when finding that no unfair labour practice had been committed.

Regarding the remedy, it was clear that the applicant was the only suitable candidate and should have been appointed to the position. It was also apparent that Ms D should never have been promoted and that she had to be removed from the post immediately.

The court accordingly ordered that the applicant be promoted to the position of director: consumer affairs as from the date of appointment of Ms D and that he be paid the salary and benefits attached to the position from that date.

Extract from the judgment:

(Goldberg AJ)

[23]   The first respondent not only committed an unfair labour practice when it changed the requirements for the Position (via the panel) but also committed an unfair labour practice where it failed to re-advertise the Position once it had changed the requirements. These failures were unfair particularly to the parties to the process.

[24]   Further by then including the fourth respondent in the process and then later lining her up against the applicant it again committed an unfair labour practice firstly because she was not meant to be part of the process and secondly because the applicant was at such time the only qualified candidate left in the running and as such only he could be appointed to the Position. As such the process embarked upon by the panel post the shortlisting phase was not only unfair to the applicant who now had a running mate to challenge him where he should have been alone but same was unlawful in that the required steps (as per the law) were not taken and instead the panel acted ultra vires and usurped the functions of the Minister.

[25]   Further the first respondent's explanation, provided at arbitration, as to why the requirements (as set out in the advertisement) needed to be changed or were to be deviated from by the panel; which was because they were discriminatory; was flawed firstly in that there was no proof that they were discriminatory, at least not legally defined discrimination; and secondly, the requirement of public work experience was based on attributes pertaining to the candidate's personal qualifications and experience which is not as such directly related to attributes or characteristics which have the potential to impair the fundamental dignity of the potential candidates so as to amount to discrimination. Once this explanation is removed (which it must be) the decision to amend the requirements becomes arbitrary. The requirement of experience is specific and mandatory. No application without the required experience should have been accepted. The fourth respondent had no right to even apply or respond to the advertisement. The requirement of experience as set out in the advertisement was the yardstick set by the Minister which all those who wanted to apply for the Position had to possess prior to applying. While the provisions of section 20(5) of the Employment Equity Act (EEA) expressly state that an applicant may not be rejected merely for reasons of experience this was not applicable here in that this was not used by the employer to discriminate in that there was no basis for comparison and there were other qualifications than experience set out in the advertisement. While the determination of the basis to the requirement of management experience is not relevant in that the award is reviewable on the first question as to whether or not the selection panel could amend the requirements the award further fails on the second question in that the amendment made is arbitrary in that it is not based on the requirements of the job but on the need to try and make the requirements less severe. The determination of suitability must take into account all relevant requirements. There was no proof provided by the fourth respondent of this. As such once the applicant proved his case the first respondent failed to justify such unfairness. Further it was clear that the requirement of management experience was justified when considering the nature of the Position. Clearly one cannot be slotted into a management position with limited or no experience in such a position. Further the "experience was not the sine qua non for the purposes of appointment or promotion." There was also the second requirement of computer literacy. [26]   Further, as set out above, the process was also flawed in that once the advert was amended it should have been re-advertised to allow candidates who did not possess the management experience to apply and thereby to open the application process to a wider range of potential candidates. All the change did was to allow the fourth respondent to be in the running where she was not meant to be. As such it was clear that the selection panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and with bias in amending the requirements; it can be said that the selection panel acted in a manner which sought to earmark the Position for the fourth respondent who it then sought to and did appoint into the Position. This was clearly unfair.

[27]   In the case of Ga-Segonyana Local Municipality v Venter N.O. and Others;Tlhotlhalemaje, J. approved of the following:

"[20]   In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others; it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer's decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer's decision not to promote; whether the employer's decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

[21]   Central to appointments or promotion of employees is the principle that that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. In my view, good cause would entail a consideration of the factors set out in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others as above."

[28]   As such in deciding on an unfair labour practice the courts have clarified the test to be that of fairness. [29]   In Apollo Tyres SA (Pty) Ltd v CCMA and Others, the Labour Appeal Court quoted from Du Toit et al, with approval on the meaning given for the term / word "unfairness" as follows:

[53]   ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

[30]   The applicant in its heads of argument set out various cases dealing with unfair labour practices where the person that was appointed / promoted did not qualify for the post and ought to have been eliminated at the very first stage. I have only set out those cases which I find that the principles exposed therein are relevant herein.

[31]   In the appealed case of Noonan v Safety and Security Sectoral Bargaining Council and Others; concerning a promotion where the successful candidate had failed to disclose information which affected his suitability for the position the LAC considered the "fairness of the process" as a whole, and came to the conclusion, that the employer had committed an unfair labour practice against the unsuccessful employee in that the successful candidate unfairly participated in the selection process.

[32]   In City of Cape Town v SA Municipal Workers Union obo Sylvester and Others the court expressly rejected the notion that the employer has the prerogative to decide who to appoint and that it should not be questioned when it exercises that discretion. The court stated that the proper yardstick was "fairness to both parties".

[33]   In the case of Kwadukuza Municipality v Rajamoney and Others Cele J set out the following:

[15]   For the requirements of an advertised post to be met therefore, cognisance must be taken of the objective of the policy to ensure that the candidate who best meets the selection criteria is appointed. The short listing of a candidate who least meets the set selection criteria will ordinarily fly on the clear face of the objective of the policy. Such short listing would then be arbitrary as contrary to the selection criteria. The applicant set out requirements to be met for the contested post. The fairness of the selection process lay in the screening of all candidates against the set requirements in a similar approach. It has to be borne in mind that there would be people who desired to apply for the contested post but did not submit their applications merely because they did not meet the set requirements. It would also be unfair to set all candidates who met all requirements against any candidates who lack any of the requirements.

[34]   In the case of KwaZulu Department of Transport v Hoosen and Others, where the facts were very similar to the present case, Judge Whitcher found that the promotion of a candidate who did not meet the requirements of the advertised post amounted to an unfair labour practice. The learned Judge set out that the employee's "promotion was irregular by want of his meeting the minimum criterion for the position."