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IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Not Reportable

Case No: D1833/2018

 

In the matter between:

 

RUSHIKA SHUKLA                                                                             Applicant

 

and

 

ETHEKWINI MUNICIPALITY REVENUE MANAGEMENT                  First Respondent

 

SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING

COUNCIL (SALGBC)                                                                           Second Respondent

 

SANDILE MADIKIZELA N. O                                                               Third Respondent

 

ZANELE MKHIZE                                                                                 Fourth Respondent

 

Heard:           26 January 2022

 

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 10h00 in 21 November 2022.

 

JUDGMENT

 

GOVENDER, AJ

 

INTRODUCTION

 

[1]        The applicant (Shukla) seeks an order reviewing and setting aside the arbitration Award handed down, on the 31^st of October 2015, by the third respondent (Commissioner) acting under the auspices of the second municipality (the SALGBC). The Commissioner dismissed Shukla’s referral and found that she had failed to discharge the onus on her to demonstrate that the failure by the first respondent (Municipality) to promote or appoint her to an advertised position for which she was the first recommended candidate, constituted an unfair labour practice. She was also unsuccessful in demonstrating a legitimate expectation to the post.

 

[2]        Shukla further seeks an order that the Municipality be directed to promote her to a task grade and salary equivalent of a Senior Manager (Special Projects) with retrospective effect from the 1^st of October 2016, with no loss of benefits

 

THE DISPUTE AND ARBITRATION PROCEEDINGS

 

[3]        The background to the dispute between the parties is the following:

 

(a)       Shukla, an Indian female, was employed by the Municipality from September 2020 and appointed to a Grade 14 post. From 2012 she was appointed to act in the post of Senior Manager (Special Projects), which acting appointment was renewed continuously for a period of 4 years. During 2015 Shukla was invited to apply for the post which was a Grade 16 post.

 

(b)       She applied for the post, was ranked first by the interviewing panel and was recommended by the panel for appointment to the post. However, the then Municipal Manager did not approve that recommendation and declared a non-appointment.

 

(c)       Shukla applied for the post once again when it was advertised in late 2015. She was shortlisted and interviewed with the fourth municipality (Mkhize). Again, she was ranked first by the interviewing panel and was recommended for appointment to the post. Mkhize was the second ranked candidate.

 

(d)       Rather than declaring a non-appointment in the second interviews, the Municipal Manager instructed the interviewing panel to change its recommendation to reflect a recommendation of appointment for the fourth municipality. The recommended candidate was accordingly changed by the panellists, from Shukla to Mkhize. The Municipal Manager duly approved the appointment of Mkhize, and she was appointed to the post as of the 1^st of October 2016. Aggrieved by her non-appointment, Shukla lodged a grievance. There was no suitable outcome to her grievance. She then referred an unfair labour dispute to the SALGBC. When conciliation failed the dispute was referred for arbitration.

 

Summary of evidence at Arbitration

 

(e)       At the arbitration Shukla called Mr Yagyandand (Pud) Maharaj as a witness. He was one of the panel members of the interviewing panel. The applicant’s second witness was Petrus Johannes Du Plessis who was employed as Head of the department of Revenue. The municipality called the evidence of Ashwin Ramburan (Ramburan), the HR Manager and Celia Zondi (Zondi), HR Practitioner. I pause to mention that the Municipal Manager was not called to testify by either party.

 

(f)        The issues in dispute as recorded by the Commissioner was whether or not the non-appointment of the applicant amounted to an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act (the LRA), and if so, whether the discrimination was unfair, arbitrary and/or irrational.

 

(g)       Shukla testified that she is a qualified chartered accountant and believed she was suitably qualified for the post. She testified that she was advised that she ranked as the top candidate during the interview, and she was surprised when she was informed by HR of non-appointment as she was an internal candidate. She stated she met the definition of a black woman and therefore had a reasonable expectation.[3] She explained that since she is an Indian female, she was of the view that she met the definition of Black in terms of the Equity Plan of the Municipality. Further that according to Employment Practices policy as set out at page 88 designated groups referred to in the definition of affirmative action measures includes blacks’ people, woman and people with disabilities.[4] She testified that she had been acting in the position up until the appointment of Mkhize. She then returned to a grade 14 substantive post. She was surprised by her non-appointment due to employment equity as other units had appointed two Indian females on the grade she had applied for.

 

(h)       She testified that the reason she referred the dispute to the Bargaining Council was because the panel had recommended her for appointment and, further, that letters of motivation were done by senior management up to the Deputy City Manager for Finance.

 

(i)         Shukla further testified that she had acted in the position for 4 years and had excellent performance assessments. She was aware that the Municipality wanted to attract and keep Chartered Accountants, and the Municipality looked at the employment equity plan which, according to her, reflected a shortage of Indian females at the level of the post. She claimed that she had an expectation to her appointment as demographics regarding African females were 36 with a target of 73 and there had been appointments from all race groups since the plan was implemented in September 2014. She stated that she was not aware about the policy that states that where two candidates from the designated group are being considered the applicant from the least represented group must be considered. But she was aware that the consideration of an applicant from an under-represented group would be considered, where interviews scores were fairly close to each other. She conceded that the Municipality needed more African candidates than it does Indian candidates.[5]

 

(j)         Mr Maharaj stated that he was part of the panel and he confirmed that the panel did not consider demographics due to the overwhelming margin. He conceded that no policy was his source to ignore employment equity due to the overwhelming margin and claimed HR did not consider asking for motivation. He conceded that the form would have been done not exclusively by Celia, but by the panel. He made a motivation after the HR Deputy Head and the Deputy City Manager and asked them to make one. As far as he was aware, the HR jacket did not contain any motivation. Maharaj further stated that no one may tamper with the recommendation of the panel. After the panel had unanimously signed the recommendation of the applicant’s appointment, Zondi brought to Maharaj’s office a revised decision which had recommended that Mkhize be appointed.

 

(k)       This was a decision which Maharaj disagreed with and expressed his disapproval in writing. He testified that the panel had not reconvened to change its recommendation. When Zondi had asked Maharaj to sign, he refused. He stated that he was the only one who disagreed from the panel. Further, he testified that next to the words of Du Plessis’s (other panellist) signature, Du Plessis had signed “on the instruction from HR and City Manager”. Maharaj testified that only if two candidates scored reasonably equal, and the post is given to the one from the least represented group. He stated that the gap between Mkhize and Shukla was in excess of 30% and therefore the policy relating to representativity would not apply under these circumstances. Further, he assumed that when the panel agreed on the applicant’s recommendation it would prevail. He had never heard of a situation where after a panel’s recommendation, a different recommendation is made substituting the panels. Further, that if the City Manager was not satisfied with the recommendation, the City Manager ought not have appointed any candidate but rather should have ordered the process to be restarted. He further stated that demographics are a guide to which HR did not object.

 

(l)         Du Plessis testified that he signed the second recommendation of the City Manager when requested to do so. Further, ordinarily a panel sends a list of recommendations which, after signing, would be sent to Krish Kumar. He confirmed he was aware that there was a page 5(b) that recommended the applicant which was no longer available. He stated that the file was returned to him, and that Kim Makatini required a motivation regarding the failure to follow the employment equity plan. He confirmed that he signed the motivation prepared by Maharaj and returned it to Krish Kumar with a motivation regarding the deviation from the policy. After a while the file was returned to him, and he was requested by Zondi to change the recommendation to Mkhize. He testified that he saw the note from the City Manager ordering the panel to appoint the second municipality, Mkhize. He stated that submitting short-listing for a senior manager position should be submitted to both the Head of the unit and Krish Kumar for approval.

 

(m)     Du Plessis claimed the Municipality should follow all its policies including the employment equity policy. Further that where one appoints Deputy Heads, that appointment must be submitted to Krish Kumar, the unit Head and the City Manager. He further confirmed that the City Manager could either appoint or not appoint, however, he did neither and ordered the panel to change it. He too stated that if the City Manager, was not satisfied with the recommendation, should have started the process afresh.

 

(n)       Du Plessis acknowledged that African women were the least represented. He stated that the reason he did not follow the Employment Equity Act was due to the fact that both candidates were from a designated group. Hence, he did not consider demographics, and he went with the panel. He conceded that he could not know whether the panel considered demographics. He further testified that the different in the scores of the candidates justify the recommendation of Shukla and that Mkhize did not express the necessary confidence to be appointed, and she was not appointable. Further, that internal candidates like Shukla should have been given the edge over the external candidates. Most importantly, he conceded that demographics were not considered in terms of the units but rather applicable to the municipality as a whole.

 

(o)       Ramaran, the HR Manager, testified that being an internal candidate did not guarantee an appointment as factors like the employment equity target compliance and appointability are influential. He further testified that the selection committee recommends to the City Manager who is the appointing officer. He testified that the City Manager has to consider appointability and employment equity targets. He testified that the City Manager receives a jacket and is obliged to scrutinise it to ensure appointability of the candidates and to ensure compliance with the legislation as well as internal policies and procedures.

 

(p)       He further testified that if an appointed candidate does not comply with employment equity, the City Manager could recommend that the process be restarted. He also claimed that based on information on the jacket, the City Manager can appoint a candidate other than the one that the panel has recommended. He disagreed with the contentions that where there is non-compliance with the Employment Equity Act, the City Manager should declare a non-appointment, as the Municipal Systems Act vests power on the City Manager to appoint. He also testified that the City Manager is not obliged to accept a recommendation from a panel. He confirmed that candidates from unrepresented groups should enjoy preferential treatment. He further testified that the appointable candidate is not necessarily the one who scores the highest.

 

(q)       Ms Zondi, the Senior HR Officer who was the second witness to testify, stated that Shukla scored better than Mkhize. She claimed that Mkhize met the criteria regarding demographics as Africans were less represented in the occupational level that Shukla had applied for. She further testified that the reason the applicant had not been appointed at the first interview was also related to demographics. Further that the panel did not attach a separate motivation but rather Maharaj made a motivation. She neither saw nor approved the motivation.

 

(r)        She testified that the City Manager had instructed Mkhize to be appointed and she accordingly informed the panellists. After taking a new selection sheet to the panel, she requested the panel members to sign the new recommendation. P Madonsela was acceptable with the appointment of Mkhize. Maharaj was unhappy and expressed that in his form. She said that’s she believed there was about a 21% difference in scores between Shukla and Mkhize.

 

(s)       Zondi further testified that the City Manager’s role is to ensure compliance with the Act and that he is the last person to approve an appointment.

 

THE AWARD

 

[4]        The Commissioner found that the onus rested on Shukla to prove the unfair labour practice on a balance of probabilities. He stated that Shukla seemed to have researched extensively to argue her case. She claimed that the City Manager should have followed due process to appoint a candidate other than the one that the panel recommended. However, Shukla stopped short of stating what due process means. He found that if it is not in dispute that the City Manager is the functionary in whom authority to appoint vests, then it is unclear what criteria he should have used not to appoint the applicant if it is not in dispute, that African women were or are the least represented demographically.

 

[5]        The Commissioner found that the three panellists had a collective responsibility to consider demographics as this is the mandate of the Municipality. Secondly the reason it became necessary to motivate for Shukla’s appointment was because the group she is a member (Indians) of is overrepresented.

 

[6]        The Commissioner found that when Shukla applied, Shukla knew that the panel could not justify her appointment in light of the shortage of African females in the job grade she applied to be appointed in. He further found that Maharaj’s argument that when two candidates score reasonably equal, the post is given to the one from the least represented group cannot be sustained either factually or legally. The employment equity is a national statute whose enforcement cannot and should not be prevented by baseless imagined conditions. The statute does not state anywhere that if the gap is wide, it should not be applied.

 

[7]        The Commissioner found that the Municipality has a legal obligation to ensure that all its employees are equally represented in order to work in categories. He found that there is nothing unlawful in differentiating when appointing an employee from a designated group. Both section 9(2) of the Constitution and 6(2) of the Act allowed differentiation. The Commissioner found that all the law requires is that the differentiation must be rational and in line with a national objective.

 

[8]        The Commissioner pointed out that the question that arose would be how the panel hoped to appoint Shukla to a position where Indian’s were overrepresented without frustrating or undermining the agenda of equity in the workplace that the Municipality hoped to achieve.

 

[9]        He found that for Shukla to succeed, she must demonstrate not only that she was discriminated against but also prove that the discrimination was unfair. Her discrimination, he found, is not based on a listed ground.

 

[10]       The Commissioner noted that Shukla alleged she had a legitimate expectation due to the length of the period she acted. However, when she applied, she knew that Indian’s were overrepresented, hence it became necessary for a motivation to appoint her. The Commissioner found that any argument that Shukla had a legitimate expectation was farfetched. He found that Shukla acted at the discretion of the Municipality and received an acting allowance. The reason she acted was not because she expected to be appointed but was for her personal development as well. He found that whilst acting gives one the edge over prospective candidates, it does not in any way entitle one to being appointed.

 

[11]       He found that the fact of the motivation letter illustrates that if Shukla was appointed, her appointment would have unfairly advantaged her and that this would have defeated the purpose of the Act, which is to benefit other designated groups in the Act meant to advance, in this case namely Africans.

 

[12]       The Commissioner also noted that when a functionary makes a decision, it is required to give reasons. The Commissioner noted, importantly, that this appears to be a shortcoming on the part of the City Manager’s decision. He found nevertheless that despite the shortcoming, it became evident during the proceedings before him, that when the City Manager ordered the appointment of the second municipality, the City Manager based such a decision on demographics. He found therefore that Shukla could not expect to benefit on the basis of that shortcoming being the City Manager’s lack of stating reasons for wanting to appoint Mkhize. The Commissioner further found that it could not have come as a surprise when Shukla was overlooked again, as her appointment would have affected representivity which favoured Indians.

 

[13]       In fact, he found that the fact that she was overlooked the second time around was consistent with the previous decision where the City Manager had taken into consideration the need to achieve representivity within the Municipality. Further, he found that for the City Manager’s decision to be challengeable, it must fail the rationality test which he found that it did not.

 

[14]       The Commissioner found that the Municipality indeed has an employment equity plan in place. Every employee who sits at any of the municipality’s interview panels has a legal duty to consider it whenever candidates are recommended for appointment. Preferring a particular candidate does not give them a right to ignore the plan whose mission is meant to address a national concern of racial inequality. While affirmative action as a national program is welcome, the fact is that there are more people who, due to the belonging to a designated group hope to benefit from.

 

[15]       The Commissioner found that contrary to the argument that the City Manager had no right to act arbitrarily, the Commissioner was not persuaded that the City Manager had acted arbitrarily. He stated that the larger part of the proceedings before him was in reference to the Employment Equity Act and the fact that it was not followed by the interviewing panel. He therefore found that there was nothing arbitrary and irrational about the City Manager’s decision not to appoint the applicant. It did not constitute unfair discrimination but rather was in line with both the Constitution and the Act and he found there was no legal or factual basis on which to compensate her.

 

THE GROUNDS OF REVIEW

 

[16]       Shukla contends that the Commissioner’s decision in finding that no unfair labour practice had been committed in relation to a non-promotion is a finding that no reasonable decision maker could have arrived at on the evidence before him. Further, that this finding was predicated upon his finding that the Municipal Manager’s decision not to appoint her and rather to appoint Mkhize instead was neither arbitrary nor irrational.

 

[17]       Further that there was no evidence before the Commissioner as to the reasons why the Municipal Manager wanted to change the recommendation, as the Municipal manager himself did not testify. Therefore, in the absence of such evidence the Commissioner had no basis in which to conclude that the Municipal Manager’s decision to change the recommended candidate from Shukla to Mkhize was neither arbitrary nor irrational.

 

[18]       Further, that there was no evidence before the Commissioner in support of his findings that the decision to change the recommended candidate was based on demographics.

 

[19]       Shukla further contended that the Commissioner’s findings that there was nothing arbitrary nor irrational and the Municipal Manager’s decision not to appoint her are findings that could never have been rationally arrived at by a reasonable decision maker and as such, these findings ought to be set aside.

 

[20]       Further, the case advanced by the Municipality was predicated entirely upon the speculative assumption that the decision taken by the Municipal Manager not to appoint Shukla had been based on considerations of her employment equity when no evidence to this effect was placed before the Commissioner. The applicant contended that the totality of the evidence led by the Municipality in support of this contention, which was never accepted as common cause, was the equivocal evidence of Zondi who stated, at page 281 of the record:

 

“I can’t really remember the exact words, but I remember that there was compliance with the Employment Equity Act. I think it was something around that. Appoint second candidate and the - was compliance with demographics or something around that.”

 

[21]       The Municipality contends that the findings of the Commissioner cannot be faulted, and that the Commissioner was correct to find that the City Manager was authorised to appoint Mkhize and was not bound to follow any prescribed procedure in effecting such appointment. Further, the Municipality contended that the undisputed oral and documentary evidence advanced by both parties was that the City Manager’s decision to appoint the fourth municipality was based on employment equity considerations. Further that the evidence has to be viewed against the undisputed fact that African females were more underrepresented than Indian females at the salary level in question. Further, there was no suggestion from Shukla that the failure to appoint her was motivated by some other consideration. Therefore, the municipalities contend that there was no need to call the evidence of the City Manager who was, in any event, not in the Municipality’s employment at the time.

 

THE LEGAL FRAMEWORK AND RELEVANT CASELAW

 

[22]       The responsibility of the appointment of personnel rests with the Municipal Manager of the employer or his delegated assignee in terms of S55(1) of the Local Government: Municipal Systems Act 32,2000.

 

[23]       The employment equity Act 55 of 1998.

 

[24]       Basic conditions of employment Act 75 of 1997.

 

[25]       Labour relations Act 66 of 1995.

 

[26]       It’s trite that the test applicable in review applications as elucidated in Sidumo[6] is trite. The enquiry remains whether the decision under review is one that a reasonable decision maker could not have come to in light of the available material presented. To the extent that the grounds of the review in this case centred around whether the Commissioner had misconceived the nature of the enquiry or failed to afford the parties a fair trial of the issues, the review test was further explained in Goldfields as follows:

 

In short: a review court must ascertain whether the arbitrator considered the principal issue before him or her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at.[7]

 

[27]       The enquiry, however, as further clarified in Goldfields, is not confined to a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the Commissioner. It is further not confined to whether the Commissioner misconceived the nature of the proceedings but extends to whether the result was unreasonable. Thus, the questions to be asked are:

 

(i)         In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process of the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute?

 

(ii)       Did the arbitrator identify the purpose he was required to arbitrate (this main certain case has only become clear after both parties have led the evidence)?

 

(iii)      Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

 

(iv)      Did he or she deal with the substantial merits of the dispute? And

 

(v)       Is the arbitrator’s decision one that another decision maker could reasonably have arrived at based on the evidence?

 

[28]       The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but bearing in mind that it is the prerogative of the employer to make appointments.[8] The exercise of that prerogative is nevertheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to a drawing of inference of bad faith. To that end it is trite that central to disputes pertaining to appointments of promotion of employees is a principle that courts, and commissioners alike should be reluctant in the absence of a good cause to interfere with the managerial prerogative of employers in making such decisions. Any form of interference should be with the objective of dispensing fairness to both parties.

 

[29]       It is trite that the onus to establish that conduct complained of amounts to an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The test on review in respect of an unfair labour practice was well set

 out in the Labour Appeal Court case of Head of Department of Education v Mofokeng per Murphy AJA: [9]

 

The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act[10] (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence.[11] Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.

 

[30]       The employee must, therefore, be able to lay the evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction of the outcome for recruitment of a selection process is not sufficient to sustain that claim. In order to succeed with a claim related to promotions or failure to appoint, an employee must, inter alia, demonstrate that as against the successful candidate:

 

(i)         she met all the inherent requirements for the position.

 

(ii)       he or she was the best candidate for that position.

 

(iii)      that not being promoted caused unfair prejudice to her.

 

(iv)      and that there is a causal connection between the unfairness complained of and the prejudice suffered.[12]

 

[31]       The Applicant to the extent that she alleges unfair discrimination must prove on a balance of probabilities, that the conduct complained of is not rational, amounts to unfair discrimination and the discrimination is unfair[13] . In casu, it must be determined whether the commissioner was correct to find that discrimination[14], if any, was justified by application of the employment equity act and plan of the municipality.

 

ANALYSIS / EVALUATION

 

[32]       It is trite that the Applicant has the onus to discharge that she was subjected to an unfair labour practice. In unfair labour practices such as this, once the Applicant has established a prima facie case that the conduct complained off constitutes an unfair labour practice, the employer is then obliged to defend the attacks against the fairness of their actions.[15]

 

Did Shukla establish a prima facie case of conduct that constitutes an unfair labour practice?

 

[33]       In circumstances of litigation in unfair labour practice disputes such as in casu, the onus is on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer too is on the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment and to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies.[16]

 

[34]       It is common cause that Shukla was first recommended candidate, she scored the highest in the interviews and most suitably qualified for the post. There was also a significant difference in scoring between herself and the other recommended candidate. She was an internal candidate, who had been acting above par excellence in the post for 04 years and she met the qualifications of the post. There were two motivation letters done for her appointment. The first one signed off by the Head of Revenue, Du Plessis [17]and the second one jointly signed by the DCM Treasury Head, Krish Kumar and Du Plessis[18].

 

[35]       It is common cause that the initial recommendation of the selection panel was changed due to the intervention of Ceclia Zondi, on the instructions of the then City manager (CM). The recommendation was changed from Shukla to Mkhzie. The initial selection sheet was disposed of by Zondi. The employer alleges that the instruction to change was due to application of the employment equity plan and policy. Shukla disputed this and alleged that she met the target demographics for the post, as she was an Indian female who fell within the designated group of Black within the definition of the EE Act.

 

[36]       Significantly, there are no recorded reasons from the city manager as to why he wanted the other candidate appointed, nor are there any recorded reasons why the motivations of the Head of departments were rejected or whether a deviation was considered if their demographics were in issue. Nor was there any clear evidence what documents where before the City Manager (CM) when he decided to instruct the panel to change its recommendation. From the above, there is no doubt that Shukla had established a prima facie case of unfair labour practice.

 

[37]       Irrespective of where the onus lay, the employer was bound to respond to her allegations and demonstrate why the appointment of the other candidate did not amount to an unfair labour practice against her. In accordance with their version, the employer had to lead evidence to proof that decision of her non appointment by the CM, was due to the affirmative action requirements of the employer and its Employment equity plan and policy.

 

[38]       It is common cause, that the evidence of the City Manager was not lead and that there was no documentary evidence presented at the arbitration, illustrating any written reasons why the CM wanted Mkhize appointed. Nor was there any evidence presented as to precisely what documents were before the CM in the file jacket, when he made his decision. The Municipality relied heavily on the evidence of Zondi and Ramburan to prove that the Employment equity policies and plans was the reason for Shukla’s non-appointment.

 

[39]       The core question is, was the evidence Zondi and Ramburan sufficient and satisfactory to demonstrate the rationality of the Municipal Manager’s decision not to appoint Shukla. Further was the Commissioner correct in his finding to accept their evidence to establish the fairness of Mkhize’s appointment as opposed to Shukla’s?

 

[40]       In my view, it was not.

 

[41]       Upon scrutiny, the evidence lead by the employer was not satisfactory at all. Ramburan and Zondi were not the decision makers in the appointment process, that power vested in the CM only as he was responsible for authorising the appointment of all suitable candidates and he instructed the change.

 

[42]       I agree with the Applicant’s submissions that Ramburan had no personal knowledge of the merits. His evidence was based purely on the policies, and he offered post facto evidence to attempt to justify the decision of the CM. In my view, he was evasive and refused to make simple concessions. His evidence was also conflicting as he stated first that any interviewed candidate, even if not recommended could be appointed. Under cross examination he stated otherwise.[19] He also stated that there were no processes to be followed by the CM when it came to making appointments and the CM could instruct the selection committee to change its recommendation. I find this version startling and highly improbable from a seasoned HR manager and practitioner. He stated that the CM could instruct the panellist to change a recommendation or appoint anyone from the recommended list or re -start the process if no suitable candidate was recommended. His evidence was a general synopsis of processes to followed but he could not state if the processes were indeed followed in Shukla’s case or of if the jacket contained all relevant information.

 

[43]       For the reasons above, his evidence should not have been relied on by the Commissioner as it carried no probative value to demonstrate the rationality of the CM’s decision and assist in the determination that the Commissioner was required to make.

 

[44]       Zondi, on the other hand was a single witness for the employer. Only she could have shed some light on the CM’s instructions to her. Her oral evidence was not substantiated by any documentary as she threw away the sheet. However, in my view, Zondi was not a reliable witness. Her reply on the critical issue of reasons to change the recommendation, was that “I think it was something around that – compliance with demographics or something …”[20] She herself was not sure of the reasons. This response is far from satisfactory on a material issue pertaining to the reasons that the CM decided not to appoint Shukla. This was a poor response and hardly persuasive and ought not have been relied on prove that the equity policy was the consideration.

 

 

[45]       Now the evidence of Du Plessis was that he has seen a handwritten note from the manager “instructing” them to change the recommendation. This version is accepted to the extent that Du Plessis confirmed that he had seen a note and that the note was signed by the city manager, albeit it appears hearsay as the city manager was not called to testified and confirm the correctness thereof. Therefore, he could not confirm that he was the author of this note and there was no corroboration.

 

[46]       In any event, the evidence of the note carries little weight to establish the reason that the City Manager wanted to change the recommendation because, significantly the note does not record the reasons that the city manager wanted the recommendation changed but records only that the CM wants the second candidate appointed. [21] . Du Plessis testified that there was a “note on the document that says it is not accepted and that we have to appoint the second candidate, and that it was signed by the City Manager, that note. It was in his handwriting, and he gave the instruction.” This too is not evidence of the rationale behind the decision to change the recommendation and appoint the second candidate, Mkhize.

 

[47]       The functionary in who the powers vests must have recorded his reasons and or testified before the tribunal as what his reasons where to deviate from the recommendation and also his reasons to reject the motivations of Du Plessis and Kumar. Further, important considerations are whether he considered the EAP statistics at the time? Where they the correct statistics? Was he aware of the motivations? Why did he reject the motivations, did he consider the practice of a Trade-off. All these important questions and considerations remained unanswered despite the evidence of Zondi.

 

[48]       The Commissioner failed to understand the evidentiary rebuttal required of the employer when he stated at paragraph 65 of the Award that the CM was not required to give reasons, or it was not the practice of the CM to give reasons. It was not an issue of whether the CM kept reasons for his decision. It was an issue that CM should have testified and explained his reasons .If there were no recorded reasons by the CM for the deviation from the recommended candidate, which could have been lead as documentary evidence, then the CM himself had to testify at the arbitration as to reasons why he chose not to appoint the recommended candidate. His reasons are vitally important to explain the rationale behind his decisions. No other witness could do that in this matter. Since that evidence was not lead there was no cogent evidence lead on which Commissioner could make a finding that the non-appointment of Shukla was fair in the circumstances.

 

[49]       Evidence had to be led by the decision maker himself, or through documents explaining why he rejected the recommendation of the panel and why the Applicant did not meet the equity targets, despite a motivation and despite the “practice of Trade Off’ ’within the employer’s recruitment process. Even the fact that the position was advertised twice is not conclusive proof that equity was the reason to appoint the second candidate or that appointment of the second candidate was rational and not for some capricious or invidious consideration.

 

[50]       In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others it was also emphasised 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 motivated by unacceptable or irrelevant considerations on the part of the employer; whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair, discriminatory, whether there was insubstantial reasons for the employer’s decision not to promote, whether it was the employer’s decision not to promote was based upon a wrong principle and 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 the applicable procedural requirements related to promotions, the list is not exhaustive. Because of the lack of material evidence i.e the evidence of the CM’s reasons, the Commissioner was not in a position to make the finding that he did.

 

[51]       All the evidence pertaining to the applicability of the employment equity policy etc did not establish the CM’s actual reasons, and called for speculation, nor was it established via the evidence of Zondi. Therefore, apart from Zondi’s evidence, which I find unconvincing for the reasons above, there was no other evidence before the commissioner at all, to establish the rationale behind the decision to change the recommendation. I tend to agree with the Applicant on this point. The actual reasons to appoint the successful incumbent was not established by the CM himself and only he could have done so in the circumstances and facts of this matter.

 

[52]       The Commissioner’s finding that this was merely a “shortcoming” is indicative that he misconceived the nature of the enquiry and failed to properly assess and consider all the evidence presented. Had he done so, he would have concluded that the employer had failed to lead evidence to explain the CM’s decision not to appoint the Applicant. As a result, he arrived at unreasonable result. He also failed to realise that the CM could not instruct the selection panel to change its recommendation, it was beyond is powers to do so. I will elaborate further hereunder.

 

Employment Equity Considerations

 

[53]       Further the dispute was not about unfair discrimination. The employment of the equity plans was raised as defence by the employer to reject the initial recommendation. The Commissioner misdirected himself in finding that in order for the Applicant to succeed in her claims she must prove a listed ground of discrimination. That was not her case at all. Shula referred an unfair labour practice dispute based on her non -appointment to a senior post notwithstanding the she was the first recommended candidate and the most suitable.

 

[54]       The Municipality also incorrectly relied on the wording of the 2017 equity policy to try and prove the fairness of their decision. The 2017 policy stated that if two candidates fare EQUALLY well, then preference is given to the person from the least represented group, which in this case would have been Mkhize. However, the 2017 policy was not applicable to this dispute and the Commissioner, in my view committed a gross irregularity by finding that it was due to employment equity policy of the Municipality that Shukla was not appointed. It is baffling how he arrived at this conclusion, given that there was no explanation before him by the CM himself for his decision to appoint Mkhize. The difficulty with the Commissioner’s reasoning, is that despite appreciating that the decision to appoint was the prerogative of the CM and the CM made this decision alone, he appears to have concluded in the absence of the CM’s evidence that the CM’s decision was rational and fair and passed the rationality test.

 

[55]       The Commissioner further fails to state which EE policy (2014 or 2017) he relied on to reach the conclusion he did, nor did he state which terms of the policy was applicable at the time or that justified the deviation despite the motivations and vast difference in scoring of the two candidates which fell in the same demographic group. He simply states that the “Employment equity” is a national statute whose enforcement should not be prevented by baseless imagined conditions. It is unclear what he means by this, as Maharaj evidence referred to by him was in any event in based on the 2017 policy. It cannot be disputed that Shukla fell within a designated group meaning” black people” and that “black people” included Africans, Coloureds and Indians. (Policy 4 December 2014).

 

[56]       It was conceded by Shukla in her evidence that African females were indeed under-represented in the employ of the Municipality by 31%. African females were on 36 and the target was 73. Shukla testified that Indian females were at 27 and the target was 31.[22] Further that according to a Circular, two Indian females were appointed as senior managers on the same grade 16 post. [23] She maintained that she believed she met the requirements of the employment equity plan 2014(applicable to her dispute), as she was Indian and fell within the category of Black. [24] Further she had performed well in the acting post for 04 years, had received bonus and a double notch grade as well. She surpassed all her performance assessments.

 

[57]       Shukla testified that Indians were also underrepresented and there was no clause at all that stated that if two candidates are recommended, preference must be given to the one from the least represented demographic. The employer’s witnesses failed to sufficiently illustrate that it was due to a particular clause of the EE plan that Shukla was excluded. They failed to lead any satisfactory evidence that equity targets were reached or not by the time of the Applicant’s interview.

 

[58]       The Commissioner committed a gross irregularity when he ignored these material omissions. Further when he failed to consider the evidence of Trade off and the options of deviation. The practice of Trade off was a practice of the employer and did not offend the agenda of equity in the workplace, according to Zondi. The very purpose of motivations indicate that deviations are possible for valid reasons. Hence it was imperative to establish, whether or not the CM considered all these relevant factors when he first rejected the recommendation of the panel. These facts would be indicative of whether he applied the equity plan and policy correctly or not.

 

[59]       The Commissioner’s finding that the lack of reasons by the functionary is a just “short coming”, which the Applicant must not benefit from, is not reasonable in the circumstances and indicates that he misconceived the nature of the dispute before him and did not fully appreciate the duty of the employer to provide an explanation for its decision not to appoint, or importantly risk an adverse outcome. Neither did he appreciate the standard of proof required and the fact that only the CM could give this evidence. He appeared to simply deliver a litany on equity policies and their applications without applying it the facts of the dispute before him, nor did he consider them in respect of the material evidence presented to him.

 

Were the instructions to the selection panel members to change their recommendation lawful?

 

[60]       If it is within the powers of the City Manager to appoint any candidate recommended by the selection panel, (as testified to by Ramburan and Zondi but disputed by Maharaj and Du Plessis) it then begs the question why the CM did not simply make the appointment. Instead of appointing Mkhize, from the actual recommendations of the selection panel and perhaps recording the reasons for the deviation, the CM instructed the panel to change its recommendation to reflect Mkhize as the only recommended candidate and removed Shukla’s name completely of the selection list, as a recommended candidate.

 

[61]       If the employer was able to demonstrate through recorded reasons or oral evidence that the CM had rational and justifiable reasons to deviate from the first recommended candidate and that Mhkize’s appointment was based on fair reasons such as equity that may have been acceptable to satisfy the requirement of rationality of the administrative action and that could possibility have been the end of the matter.

 

[62]       But instead, all that was achieved by the subsequent “instructions” to the panellists, to change the recommended candidate from Shukla to Mkhize, which they did, was to taint what would have otherwise been a fair process of selection and recommendation.

 

[63]       The purpose of an interview and selection panel is to ensure a fair process free from bias. The panel interviews, assesses and scores candidates. They make the recommendation of the candidate that they opine is the most suitably qualified for the position bearing in mind the selection criteria and requirements of the post. This process must be an objective and fair exercise. Otherwise, what would be the purpose of the interview and selection process, if it were permissible that the CM had the authority to instruct the panellists to change their recommendation against their free will. The selection process would not be fair at all, if it was permissible for undue influence to be exercised on any panellists in the exercise of their duties. It would ludicrous if this was allowed and defeat the entire process of selection and interview of candidates.

 

[64]       In my view, when the City Manager instructed the panel members to change their recommendation, he thereby acted improperly through the conduct of Zondi and this resulted in an unfair selection process. In fact, the moment the panel submitted their list of recommended candidates they are ex officio, having carried out their mandate. It is common cause that Mkhize was not their first choice, and that the original recommendation reflecting Shukla was disposed of. Further they were instructed to endorse a new selection sheet to dishonestly and incorrectly reflect that Mkhize was their first and only choice for the post.

 

[65]       There was no reasonable explanation before the Commissioner by the CM, why he made this instruction and interfered with the discretion of the panellists and impose his choice on them and why did he not simply appoint the second candidate Most startling, is the evidence of the Zondi and Ramburan in particular, who saw no flaws in this conduct and tendered a version that it was acceptable as there were no prescribed processes by which t “ appointments” must be made . Even if there are no prescribed processes, this certainly did not give the CM any authority to interfere with the exercise of the selection panellists duties. This version ought to have been rejected in its entirety.

 

[66]       If a power that is given to be exercised by a particular functionary was not exercised rationally and fairly or was exercised in a manner not authorised by law, such exercise would be illegal or unlawful. There is a vast difference in exercising one’s power to appoint a candidate from a recommended list (even if not the first choice) and the exercise of power to interfere and instruct the selection panellists to actually change their choice of recommendation. This very conduct of the CM is the Achilles heel for the employer herein. His improper influence on the selection panel by instructing them to change their recommendation in line with his choice is clearly therefore illegal and unlawful.

 

[67]       I agree with the contentions of the Applicant that the actions of the employer were not lawful, reasonable and procedurally fair. It was unlawful for the CM impose his will on the panel and indeed unreasonable and unfair as he alone, as the functionary with the power to appoint should have appointed his choice and stated reasons for deviation, if it was possible to do so. The substitution of the recommended candidate is in my view unlawful and amounted to an irregularity resulting in prejudice to the Applicant.

 

[68]       The Commissioner failed to apply due weight to this material evidence. Had he done so, he would have concluded, that the employer committed an unfair labour practice because it was simply not lawful, fair or proper for the CM to instruct the panellists to change their recommendation. Consequently, the process of the interviews and selection was unfair due to the conduct of the CM.

 

Conclusion

 

[69]       As stated earlier the Commissioner failed to consider that there was in fact no credible evidence before him at all to demonstrate the rationale behind the unlawful instruction to change the recommended candidate, or decision to not appoint the recommended candidate. It is rather extraordinary that the Commissioner did not apply his mind to the obligation on the employer to defend through cogent evidence that it engaged in a fair process and the decision to appoint Mkhize was a rational decision. His failure to do so, in my view illustrates a gross irregularity in the proceedings as he clearly misdirected herself in the failing to take cognisance of the employer’s obligation herein, once the unfair labour practice had been established.

 

[70]       Had he done so, he would have found that Shukla was indeed subjected to an unfair process when she was completely obliterated as a first or any recommended candidate of the selection panel, resulting in an unfair labour practice. It can hardly be said that she participated in a fair process at all, when the panellists were instructed to change their recommendation and which they in fact did. Maharaj was bold enough to endorse his reluctance on the form. Further the second selection sheet did not even mention Shukla. He ought to have found that the Applicant was subjected to an overall unfair selection and interview process and that this conduct vitiated the entire process.

 

[71]       In light of all the above, the finding of the Commissioner is reviewable, and the Award must be set aside and substituted with a finding the Shukla was indeed subjected to an unfair labour practice.

 

PROTECTED PROMOTION OR COMPENSATION

 

64.         The next determination is whether I should find in favour of a protected promotion or order compensation to be paid to the applicant. At arbitration, the applicants asked for compensation. [25] Her referral form sought a protected promotion, and, in this review, the Applicants seek protected promotion. The employer contended that the court only has the powers to grant what was sought at arbitration as this application is a review of that award.

 

65.         The powers of a reviewing court allow the court to set aside the award and substitute it with an award that is just and equitable. The reviewing court therefore sits in the same position as the commissioner when the court is inclined towards a substitution order, as I am so presently inclined.

 

66.         The facts of the dispute reveal a protected promotion dispute and that the is the true nature of the dispute between the parties. The Applicant has certainly satisfied the requirements of a protected promotion. She was the undoubtedly the most suitably qualified candidate, and clearly, she was prejudiced by not being so appointed. There is no question that she met the selection criteria and scored far higher than the Mkhize. Even Zondi confirmed this in her evidence. She fell within the demographic group and her appointment was supported by the Head of department and by the Head of the Finance section.

 

67.         The question to be answered, is whether but for the conduct of the CM, would the Applicant have been appointed. To make this determination, the court must establish whether these is sufficient evidence on record to hold that but for the CM’s conduct, Shukla would have been promoted to the post. Since there was no evidence on record from the CM, why he did not appoint the recommended candidate, nor any persuasive evidence that the CM was permitted to appoint the second candidate or whether he was only permitted to the declare a non-appointment, then in the absence of such evidence, the only conclusion is that the decision not to appoint the first recommended candidate was not rational or fair. Therefore, had it not been for this unfair conduct, the Applicant would have been appointed.

 

68.         Even though the applicant’s representative sought compensation at the arbitration, and it was argued that the court is bound to grant only such relief, I do not find that it will be fair and just in these circumstances to grant her compensation. Further the Applicant’s legal representative at the arbitration, submitted that he was seeking compensation from the date of the appointment, and I am of the view that what was inferred, even though not properly articulated was the relief of a protected promotion. Hence his submissions on an agreement between himself and the employer’s representative, of supplying proper figures at a later stage.

 

69.         The true nature of the dispute is clearly a protected promotion, it is the relief sought in this review and in her dispute referral form to the Council. The Applicant has met all the requirements. I see no reason why the court should not grant such an order.

 

COSTS

 

70.         I find that there is no basis for a costs order to be made against either party herein.

 

ORDER

 

71.         Accordingly, in the premises I make the following order:

 

(a) The review is granted.

 

(b) The Award is substituted with the following order:

 

i)   The first respondent’s failure to promote the Applicant to the post of senior manager (special projects) on 01 October 2016, constitutes and unfair labour practice. The applicant is granted the relief of a protected promotion.

 

ii)   The first respondent is directed to promote the Applicant to task grade 16 and salary equivalent to that of senior manager (special projects) with retrospective effect to 01 October 2016, with no loss of benefits.

 

(c) No order as to costs.

 

N Govender

Acting Judge of the Labour Court of South Africa

 

For the Applicants: Goodrickes Attorney

 

La Lucia Ridge

 

For the First Respondent: Buthelezi Mkhize Attorneys

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