Not reportable

the labour court of South Africa,
held at CAPE TOWN

case No: C291/2018
 
In the matter between:

 popcru obo Julian Nkoko	First Applicant

And

gpssbc	First Respondent

JUSTICE NZEMBOMBOA (N.O.)	Second Respondent

DEPARTMENT OF CORRECTIONAL SERVICES	Third Respondent

Date of Set Down: 09 September 2021
Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 10 August 2022

Summary: (Review – Unfair Labour Practice relating to promotion – principles governing such reviews restated – Condonation for late filing of initial review condoned – Review subsequently deemed withdrawn for non-compliance with time periods for filing record – Condonation application for late filing of record not condoned – review remains withrawn)

JUDGMENT

LAGRANGE J 
Introduction
[1]	This is an application to review and set aside an arbitration award in which the arbitrator dismissed the applicant’s claim that the failure of the third respondent (‘the department’) to appoint him to a post of Senior Correctional Officer (SCO) was an unfair labour practice. 
[2]	The applicant filed his review application and the transcribed record late and has applied for condonation for both these lapses.
[3]	The application was argued virtually using Zoom owing to the prevailing Covid-19 pandemic at the time.
Factual background
[4]	The following facts were found to be common cause by the arbitrator: The applicant (‘Nkoko’) was employed as a correctional officer Grade 1 (CO2); He was shortlisted and interviewed for the post of SCO. He obtained the same interview score as another candidate. Mr W Mbombo (‘Mbombo’). Nkoko and Mbombo together with two other candidates were recommended for the promotional appointment. In terms of their interview scores Nkoko and Mbombo were second placed among the four candidates. The first ranked candidate was not appointed for equity reasons. The interview panel chairperson, Mr E Mfenge (‘Mfenge’), recommended Mbombo for appointment and he was duly appointed.
The applicant’s case at the arbitration and the arbitrator’s findings
[5]	Nkoko argued that he should have been preferred over Mbombo on the following basis:
[6]	The salary level for the new post was level 8 and since Mbombo was a CO2 (salary level 6), whereas he was a CO2 on salary level 7. In his view only someone on salary level 7 ought to have been considered for promotion to salary level 8.
[7]	Mbombo had not attached his driver’s license and identity document to his CV and accordingly should not have been interviewed.
[8]	Nkoko argued that he was more experience than Mbombo because he had longer experience as a salary level CO2 officer.
[9]	The arbitrator accepted that Nkoko was more senior to Mbombo. However, he found that this did not automatically translate to him being the most experienced candidate for the post. The arbitrator found that Mbombo had been appointed before Nkoko and had special training and intelligence structure skills Nkoko did not have. The arbitrator took the view that he could not prescribe what other experience the department wanted from candidates, and unless there was evidence to show that the department acted with improper motives he ought not to interfere in the decision on whom to appoint.
[10]	The arbitrator also found that because Mbombo had attached his driver’s license to his application, it was immaterial that he had not mentioned it in his CV.
The condonation applications
Condonation for the late filing of the review application
[11]	The award was received on 16 December 2017 and the review application was launched on 6 April 2018. Consequently, the review was some ten weeks late which is a significant delay. The reason for the delays was that successive firms of attorneys had to be instructed to take the matter and it was only on 28 March that this was finalised. The delays were beyond the applicant’s control and were in the hands of the union and their legal insurers. I am satisfied that despite the extent of this delay, it should be condoned, irrespective of the merits.
Condonation for the late filing of the record
[12]	A further delay occurred in the filing of the record. It was only in May 2019 that the first notice was issued by the registrar to the applicant’s attorneys to collect the record for transcription which they promptly did. Multiple mishaps then took place. Reading the narrative, it appears that a correct record was only made available in August 2019, but the record was only filed on 14 July 2020. The applicant also applied for condonation for the late filing of the record, somewhat confusingly stating that it was ’90 days late from the 14th of July 2020’ which is actually the date the record was filed. During oral argument Mr Mbobo, the department’s counsel referred to Nkoko’s non-compliance with the rules and the provisions of the practice manual, but without elaborating on the latter issue. Regrettably, Ms Nkosi, Nkoko’s counsel who dealt comprehensively with the first condonation application and the merits of the review did not deal with the condonation for the late filing of the record.
[13]	Neither party specifically addressed the application of clauses 11.2.2 and 11.2.3 of the Labour Court Practice Manual though Nkoko’s legal representatives would not have applied for condonation of late filing of the record if they were not aware of those provisions. Those provisions state:
“11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.
  11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent's consent for an extension of time and consent has been given.”
Degree of lateness and explanation for the lateness
[14]	The attorneys of record had the compact disc and the transcribed documents on 5 November 2019 but took more than seven months’ to file them. There is no evidence when the registrar advised that the correct record was available but if I assume in the applicant’s favour that when the applicant collected it on 23 August 2019, it had only just been made aware of its availability by the registrar on that very day, then by the time it was filed on 20 July 2019 it was well over 90 court days late and in terms of clause 11.2.3 must be deemed withdrawn. 
[15]	In Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) , the LAC held:
[17] In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established, would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.”
[16]	As Nkoko did apply for condonation for the late filing of the record, I am prepared to deal with that application as one effectively made in support of reviving the withdrawn application on the basis of the dictum in Samuels. I am nonetheless disinclined to grant condonation and therefore not revive the review application for two principle reasons. 
[17]	Firstly, the time taken between 23 August 2019, when the complete record became available and 20 July 2020 is extremely long. The ninety day period would have expired by mid-November 2019. The explanation that it was impossible to obtain counsel to assist with the condonation application until April 2020 is simply untenable. The urgency of the matter should have been pressing by then. It is also not a sufficient explanation to attribute any remaining delay to lockdown regulations. Physical contact would not have been necessary for counsel to peruse documents and to the extent consultations had to take place that could have been done telephonically. Consequently, the explanation for the delay in filing the record is not satisfactory and the delay is very long.
[18]	Secondly, I am not persuaded on the merits that the applicant has a reasonable prospect of success. This is dealt with below.
Merits
Legal principles governing reviews of awards pertaining to unfair labour practises concerning promotions
[19]	In Department of Rural Development & Agrarian Reform, Eastern Cape v General Public Service Sectoral Bargaining Council & others (2020) 41 ILJ 1321 (LAC) the LAC held
“[22] A decision on the merits of an unfair labour practice dispute stands to be reviewed in the light of whether it is one that no reasonable commissioner could reach. The essential question for determination in this appeal, therefore, is whether the arbitrator’s finding that the department’s omission to promote Musisi was unfair, and his deeming it reasonable to order the promotion, were unreasonable.
[23] The department’s contention that restraint and deference are called for is not entirely misplaced, though somewhat overstated in the context of this case. Courts and arbitrators should be reluctant to interfere with an employer’s decision to refuse promotion. They will do so only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply its mind to the promotion or acted in bad faith. But equally, where there is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified. Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post. Such deference, however, will be less compelling where the employer has unfairly discriminated against an employee or acted otherwise egregiously. Likewise, the remedy of instatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the employee proves that but for the unfair conduct he, or she, would have been appointed.”
[20]	The LAC also referred in the passage cited above to the judgment in South African Police Service v Safety and Security Sectoral Bargaining Council and others [2016] JOL 35883 (LC, in which the Labour Court summarised the jurisprudence in such disputes:
[26] The jurisprudence that the arbitrators and judges have developed can be summarised as follows:
26.1 It is not sufficient for a candidate for promotion to claim that she was better qualified or more suitable than the successful candidate The candidate must show that the decision to appoint another was unfair.
26.2 If the decision of the employer to appoint one in preference to the other is rational no question of unfairness can arise.
26.3 The corollary of this principle is that a comparison of the relative strengths and weaknesses of the candidates are only relevant if they suggest that the selection was arbitrary or motivated by an unacceptable reason.
26.4 The reasons for promotion or non-promotion are only relevant in so far as they shed light on the fairness of the process of selection. As a corollary, arbitrators should avoid if possible making a decision on the merits of an appointment.
26.5 Arbitrators should be slow to intervene too readily in disputes relating to promotion and should be sensitive to the operational requirements, as they may be perceived by the employer, unless bad faith or improper motives are present.
26.6 The employer's failure to comply with its promotion policies and procedures can constitute an unfair labour practice if the failure is such that the complainant was denied the opportunity of being considered for the post.”
[21]	To these principles must be added the salutary note that an arbitrator determining an unfair labour practice in relation to promotion is not considering the merits of the impugned promotion de novo, unlike in the case of arbitrators determining the fairness of dismissals.
The Grounds of review
[22]	Nkoko claims that the arbitrator committed a reviewable irregularity in finding that the failure to appoint him was not motivated by bad faith, when the evidence all pointed to him being the stronger candidate, with more experience including managerial experience which Mbombo lacked.
[23]	Nkoko argues further that the arbitrator failed to consider:
23.1	his 15 years’ experience most of which was in a superior or managerial capacity which Mbombo lacked;
23.2	managerial experience was an inherent requirement of the post, whereas intelligence experience was not;
23.3	the duties and competencies of the post had nothing to do with intelligence, and
23.4	he was more senior in terms of rank and salary level.
[24]	The arbitrator unreasonably rejected his objection that Mbombo had not attached his license and ID document to his CV.
[25]	The arbitrator could not have come to the conclusions he did based on Mfenge’s own evidence that intelligence experience was not one of the advertised requirements, and his own acknowledgment that Nkoko had more experience in administrative and supervisory work than Mbombo.
[26]	The department argues that the failure of Mbombo to attach his ID and license to his CV is immaterial because the documents were attached to his application and there is no dispute he has a driver’s license. Insofar as the panel considered the relative experience of Mbombo and Nkoko in intelligence related work based on what was in their respective CV’s, Nkoko acknowledged he had not included the experience he did have in such work, whereas Mbombo had done so. This related to Mbombo’s intelligence gathering work he claimed he had to perform to fulfil EST duties relating to the protection of high level functionaries.
[27]	The department disputes that intelligence experience was irrelevant to the post. The post required a candidate to ‘manage internal and external security’ and to ‘manage security systems’ and that was why the experience detailed in Mbambo’s CV gave him an edge over Nkoko.
[28]	The OSD dispensation had the effect of consolidating salary levels CO1 to CO3 into CB1, and both of them were grade 12 officials with more than 12 years experience, so the distinction Nkoko sought to rely on was an outdated one in terms of ranking their job grading.
Evaluation
[29]	Firstly, it must be said that some of the grounds of review are framed as grounds of appeal. It is not sufficient simply to allege that an arbitrator failed to consider particular evidence. (See Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at paras [32] – [33]).
[30]	As the Labour Court judgment in SAPS (cited above) makes clear, the preferment of one candidate over another even if the unsuccessful one is better qualified or more suitable than the successful one is not sufficient to establish unfairness. In this instance it is acknowledged that Nkoko had more supervisory experience than Mbombo. On the other hand, Mbombo’s CV revealed his security experience, whereas Nkoko’s did not and it did not come up in the interview. It was not obviously irrational to consider security experience when making a final decision, as this was one of the job responsibilities identified in the advertisement. The failure to attach an identity document and driver’s license to Mbombo’s CV was an administrative defect, but was substantially complied with by being attached to the application. Had Mbombo not been shortlisted on the basis of this he would have had good grounds for challenging his exclusion based on this administrative requirement. 
[31]	In the Rural Development case, the LAC upheld the arbitrator’s decision to appoint the employee to the post in question. In that case, the employer had defended its decision not to appoint him based on a dispute about whether he had the necessary BSc qualification. The court found that it was undisputed that his BA(Hons) degree was more than an equivalent qualification and moreover was an irrelevant factor because he fulfilled the alternative criterion of having experience in the post. It cannot be said that Mbombo’s security experience was an irrelevant factor the employer considered when preferring him for appointment over Nkoko. The result might well have been different had Mbombo included his experience in security in his CV.
[32]	In the circumstances, it cannot be said that the arbitrator’s decision was one no reasonable arbitrator could have reached based on the evidence before him and I cannot see on what basis it can be said Nkoko has a reasonable prospects of success. Although the merits have been dealt with more comprehensively than required for considering condonation, the same conclusion is reached even if I only consider if there are reasonable prospects for success on the basis of the very grounds of review raised by Nkoko.
Conclusion
[33]	The review application is deemed withdrawn, but even if the argument for condoning non-compliance with the practice manual is considered the justification for the extraordinary delay in filing the record cannot be justified and the prospects of Nkoko succeeding are poor. In the circumstances the following order is made.
Order
[1]	The initial late filing of the review application is condoned.
[2]	The review application was subsequently deemed withdrawn.
[3]	The applicant’s application to condone the late filing of the record is dismissed and the review application remains withdrawn.
[4]	No order is made as to costs.

Lagrange J
Judge of the Labour Court of South Africa

Representatives
For the Applicant	F Nkosi, instructed by Jacques Marais Attorneys

For the Third Respondent	S Mbobo instructed by the State Attorney