14/06/2017
It is now trite law that when a CCMA
commissioner assesses the substantive
fairness of an employer’s decision to dismiss
an employee, the commissioner must not
show deference to the decision made by the
employer.
By: P.A.K le Roux
It is for the commissioner to decide
this issue taking into account the evidence
placed before him as well as the reasons
given by the employer for the dismissal.
But what approach must a commissioner take
when assessing a decision of an employer to
promote, or not to promote, an employee
when exercising its unfair labour practice jurisdiction
in terms of the Labour Relations
Act, 66 of 1995? (LRA). Must or can he
show deference in this regard? This issue
was discussed in CLL vol 22 no 5. In this
contribution we discuss a recent important
decision of the Labour Appeal Court (LAC)
dealing with this question.
The employee in
Ncane v Lyster NO and
others (DA27/15 10 January 2017), Warrant
Officer Ncane, applied for promotion to
a post that carried the rank of captain in the
South Africa Police Service (SAPS).
Ncane’s application, and that of seven other
short-listed candidates, was assessed in terms
of criteria set out in a national instruction issued
by SAPS management. They were assessed
on the basis of three criteria, namely:
competency; prior learning, training and development;
and, experience. Points were allocated
to each candidate in respect of each
of these criteria. Ncane received one point
less than the successful candidate and, based
on this assessment, was not promoted. He referred
a dispute to the Safety and Security
Sectoral Bargaining Council challenging this
decision and argued that the failure to promote
him constituted an unfair labour practice.
He appears to have argued that he
should have been awarded more points for
the criteria of prior learning, training and development
and experience. The arbitrator rejected
his argument and found that SAPS had
not committed an unfair labour practice.
On review, the Labour Court decided that
Ncane should have been awarded an additional
point in respect of prior learning, training
and development. This meant that Ncane
and the successful candidate should have
achieved the same score. This, in turn,
meant that the decision not to promote was
substantively unfair – the fact that he had not
been awarded the same points meant that he
had not been given the opportunity “to compete’
in the process. The dismissal was also
procedurally unfair because the the national
instruction had not been complied with. The
arbitrator’s award was set aside on this basis.
However, the Court also came to the conclusion
that it was not, on the evidence before it,
able to find that, if Ncane had been given a
fair opportunity to compete, he would have
been promoted. The Court therefore decided
that it could not grant the order of protected
promotion requested by Ncane. It ordered the
payment of compensation.
Ncane then appealed to the LAC. The LAC
assessed the evidence and came to the conclusion
that the arbitrator’s award could not
be overturned and that the appeal should be
dismissed. Of importance were the views expressed
by the Court as to how an arbitrator
should approach disputes dealing with alleged
unfair labour practices and, in particular, decisions of employers relating to promotion.
It distinguished between procedural fairness
and substantive fairness. In the context of
promotion this meant that the employer must
abide by the law and the objective standards
and criteria that it has set for promotion. The
employer must ensure that an eligible employee
has a fair opportunity to compete for
the post. The aim of procedural fairness is to
achieve a fair substantive result and the failure
to follow a fair procedure may result in a
decision also being substantively unfair.
But the Court also acknowledged that the assessment
of suitability for promotion is not a
mechanical process and that there is an element
of subjectivity involved. It said the following
-
‘[25] When it comes to evaluating the
suitability of a candidate for promotion,
good labour relations expect an employer
to act fairly but it also acknowledges that
this is not a mechanical process and that
there is a justifiable element of subjectivity
or discretion involved. It is for this reason
that the discretion of an arbitrator to
interfere with an employer’s substantive
decision to promote a certain person is
limited and an arbitrator may only interfere
where the decision is irrational,
grossly unreasonable or mala fides. See
on this Goliath v Medscheme (supra).
[26] But where an employer provides that
certain rules apply as regards the decision
to promote or to recommend a candidate
for promotion, eg as in this case, the
candidate who scores the most points
must be recommended by the panel; good
labour relations requires an employer to
be held to this. A failure to comply with
the rules may result in substantive unfairness.
[27] In the case where another person
has been promoted to the post then the
unsuccessful candidate must show that
this is unfair. And as Wallis AJ (as he
then was) said in Ndlovu v Commissioner
for Conciliation, Mediation and Arbitration
and Others:
‘That will almost invariably involve comparing
the qualities of the two candidates.
Provided the decision by the employer is
rational it seems to me that no question of
unfairness arises.’