Court name
Labour Court Main Division
Case number
78 of 2011
Case name
Municipal Council of Windhoek v Ochurus
Media neutral citation
[2014] NALCMD 13
Judge
Unengu AJ










REPUBLIC
OF NAMIBIA






LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK






JUDGMENT






Case
No.: LCA 78/2011






DATE:
07 MARCH 2014






NOT
REPORTABLE






In
the matter:






THE
MUNICIPAL COUNCIL OF
WINDHOEK........................................APPELLANT


 


And


 


ERNA
OCHURUS..................................................................................RESPONDENT


 


Neutral
citation:
The
Municipal Council of Windhoek v Ochurus
(LCA
78/2011) [2014] NALCMD 13 (7 March 2014)


 


Coram:         
UNENGU,
AJ 


 


Heard:          
26
July 2014


Delivered:
   
7
March 2014


 


Flynote:        
Labour Appeal against arbitrator’s award – Respondent
alleging unfair discrimination on ethnicity – Respondent failed
to establish discrimination – Arbitrator not necessary to apply
Affirmative Action (Employment) Act, 1998 – Appeal upheld and
Award set aside.


 


Summary:    
Appellant has appealed against the arbitration award issued against
it is in terms of section 86(15) of the Labour Act, 2007 (Act 11 of
2007).  In the proceedings before the arbitrator respondent
alleged that she was discriminated against by the Strategic
Executive:  Finance of the City of Windhoek on the ground of
ethnicity – persuading the arbitrator to issue the award in her
favour.  In appeal – the arbitrator’s award set
aside in whole, and as a result, therefore, the appeal upheld and the
decision by the Strategic Executive:  Finance, confirmed. 













ORDER







1.        
The appeal is upheld.


2.        
The award by the arbitrator issued on 16 December 2011 in favour of
the respondent is set aside.


3.        
The decision of the Strategic Executive:  Finance to promote Mr
Mbangu into the position of Senior Storeman is confirmed.


 



 



JUDGMENT










UNENGU,
AJ:






[1]
       This is an appeal by the
appellant brought against the arbitration award made by the
arbitrator on 16 December 2011 under case number CRWK728-11, in
favour of the respondent.  Here below are the background events
which led to this appeal.


 


[2]       
On 5 February 2010. The appellant advertised or caused to be
advertised a position of a Senior Storeman in the department of the
Strategic Executive: Finance.  The respondent and other
candidates, in particular Mr Mbangu, who together with the respondent
worked in the same department, applied for the post; both shortlisted
and were interviewed on 25 August 2010.  The interview panel
recommended the respondent for the position on the basis of
affirmative action for being a woman from a previously disadvantaged
group.  However, Mr Gertze, the Strategic Executive: Finance,
who was the appointing authority, differed with the interviewing
panel and, after consultations with two other senior officials in the
employment of the City of Windhoek, appointed Mr Mbangu, also from a
previously disadvantaged group, but a male person.


 


[3]       
On 29 September 2010, the appellant informed the respondent that her
application was unsuccessful.  As a result, the respondent, and
in accordance with the internal policy of the City of Windhoek,
lodged a grievance complaint with the Chief Executive Officer against
the decision of Mr Gertze, the Strategic Executive: Finance, for not
appointing her as recommended by the interviewing panel.  The
Chief Executive Officer, however, agreed with Mr Gertze and as such
confirmed his decision.  Still not satisfied, the respondent
appealed the decision of both Mr Gertze and the Chief Executive
Officer to the Management Committee of the City.  But again her
appeal was dismissed.  Aggrieved by the decision of the
Management Committee, the respondent in terms of Section 82(7) and
section 86(1)[1], (Regulation
16(1), Regulation 18 and Regulation 20(1)) referred a dispute of
unfair discrimination, unfair labour practice; and other relief to
the Office of the Labour Commissioner.  This happened on the 16
August 2011, but served on the Labour Commissioner on 17 August 2011.


 


[4]       
In terms of section 85(5) of the Act, Mr Moses Iinane of the Office
of the Labour Commissioner was designated to arbitrate the matter on
16 September 2011 at 09h00.  The arbitration proceedings were
held on 11, 20, 26 October 2011 and 4 November 2011 when written
heads were submitted and the oral submissions presented by the
representatives of the parties.  Eventually, the arbitrator
concluded in favour of the respondent.  In terms of the award,
the arbitrator found and made the following order:


           
(1)     
That the respondent’s decision not to promote the applicant,
into the position of Senior Storeman on the ground of,
inter
alia
,
ethnicity, amounts to unfair discrimination and unfair labour
practice and hence a violation of Article 10(2) of the Namibian
Constitution, Section 5(2)(a) and (b) of the Labour Act, section
19(2) of Affirmative Action (Employment Act) as well as relevant
clauses of the respondent’s Affirmative Action Policy and hence
such decision is herewith set aside;


 


(2)       
That the respondent is order (sic) to appoint the applicant to the
position at grade B4 with effect from the 1st January
2012;


 


(3)       
That the respondent is further order to pay the applicant the
difference between her current salary at level B2 and the salary she
would have earned had she been appointed to the position of a Senior
Storeman level B4 on 1st October 2010, this being the date
on which that position had been filled.  The difference in
remuneration is to be calculated from the 1st October 2010
to 31 December 2011.


 


(4)       
I have not made an order as to costs in the circumstances.”


 


[5]       
The award was signed by Mr Moses Shitaleni Iinane at Windhoek on the
16th day of December 2011 and stamped with a date stamp of
the Labour Commissioner Private Bag 13367, 16 December 2011 Windhoek,
Republic of Namibia.


 


[6]       
On 23 December 2011, the appellant filed its Notice of Appeal against
the Award, on the grounds that: 


(1) 
The arbitrator erred in law by finding that the appellant exercised
his discretionary powers unreasonably by deviating from the
recommendations of the interview panel;


(2)       
The arbitrator erred in law by placing undue weight on one criteria
namely ethnicity as the reason why the Respondent was not recommended
to the position of Senior Storeman, whilst ignoring other relevant
criteria/reasons such as comments of interviewing panellists,
duration of service, experience of candidates;


(3)       
The arbitrator erred in law by not placing any evidential value to
the evidence of Gert van Wyk that the Respondent did not meet the
requirements of the position, namely a Grade 12 with 20 points and an
E symbol in English;


(4)       
The arbitrator erred in law by finding and/or ruling that the
Respondent must be appointed to the position of Senior Storeman,
whilst in his evaluation/analysis or argument he correctly conceded
that the RECOMMENDATION IS NOT PER SE FINAL AT THE STRATEGIC
EXECUTIVE          
HAS A FINAL SAY IN DECIDING WHETHER TO APPOINT A RECOMMENDED
CANDIDATE OR NOT
”.


 


[7]       
On 27 January 2012, the respondent gave notice of her intention to
oppose the appeal on the grounds amongst others that the appellant
failed to prosecute its appeal within 90 days as required in Rule
17(25) of the Rules of the Labour Court, therefore, the appeal was
deemed to have lapsed.


 


[8]       
The issue of the appeal to have lapsed due to failure on the part of
the appellant to prosecute the appeal within 90 days as required by
Rule 17(25) of the Rules of the Labour Court, was heard by Smuts, J
on 25 September 2012 and delivered his judgment[2]
in favour of the appellant, paving the way for the present appeal.


 


[9]       
Before me, Mr Töttemeyer with him Mr Phatela argued the appeal
on behalf of the appellant, while Mr Hinda acted on behalf of the
first respondent (Ms Ochurus).  The second respondent did not
oppose the appeal, for an obvious reason, namely, does not have any
interest in the outcome of the appeal.


 


[10]     
Turning back to the appeal itself, I shall attempt to deal with the
grounds thereof, not necessarily following the order in the notice of
appeal.  I shall start with ground 3, where the appellant is
crying foul that the arbitrator made an error in law by not placing
any evidential value to the evidence of Mr Gert van Wyk that the
respondent did not meet the requirements of the position, namely a
Grade 12 with 20 points and an E symbol in English.  There is no
merit in this ground of appeal.  The appellant self allowed and
invited the respondent for interviews as if she met all the
requirements.  Why was she shortlisted in the first place? 
The shortlisting was done by the Human Resource Office of the
appellant who allowed the respondent to come for interview despite
the fact that she did not meet the requirement of Grade 12 with 20
points with an E symbol in English.  That being the case, I find
the requirement  to have been relaxed for her and she
qualified.  In any event, it would appear as though that this
ground of appeal was not pursued by the appellant on appeal because
Mr Töttemeyer, counsel for the appellant in both his written
heads of argument and oral submissions did not support the ground. 
Therefore, the ground will be disregarded.


 


[11]     
Next, is ground number 1.  In this ground the appellant is
faulting the arbitrator in finding that the appellant exercised his
discretionary powers unreasonably by deviating from the
recommendation of the interview panel.


 


[12]     
It is part of Mr Töttemeyer’s submissions that the
appellant took an administrative action when it decided to promote Mr
Mbangu to the position of a Senior Storeman than Ms Ochurus.  He
argues that the onus to prove that the decision taken by the Council
is wrong rests on the respondent and, according to him, to prove that
it was illegal and contrary to a provision of the Act or contrary to
a legal principle in fact and in law.


 


[13]     
I am also taken aback by the decision of the arbitrator to reverse
the decision of the Strategic Executive Finance who promoted Mr
Mbangu in the advertised post than the respondent.  The issue
why Mr Gertze did not follow the recommendation by the interview
panel, has been debated extensively before the arbitrator. 
Reasons were provided by Mr Gertze why he did not follow the
panellists’ recommendation to appoint the respondent.  In
his evidence-in-chief, Mr Gertze told the arbitrator that in his
belief a recommendation is just a recommendation, it is not an
appointment or an approval per se, therefore he could change
or alter that recommendation.  He said:  ‘I am the
appointing authority in consultation or conjunction with the Human
Resource Department’.  This evidence has not been
contrasted by any other admissible evidence of a witness who
testified during the arbitration.  In the result, the arbitrator
should have accepted that Mr Gertze, in his capacity as the
appointing authority at the finance department could deviate from
recommendations by the panellists on good grounds.


 


[14]     
Further, in his evidence-in-chief, Mr Gertze did explain why he
deviated from the recommendations of the panellists.  He did it
not only on the ground of ethnic representation in the department,
but also on other grounds as well.  He said the following in
evidence-in-chief:  ‘When I received the minutes of the
interview panel, I looked through the outcome of the interview and I
realised that the three candidates in the final points presented to
me scored the same points.  And then I found it interesting
because what normally happens at interview panels is that the
interview panels come to sort of a consensus scoring.  So it was
interesting to me that three candidates scored the same points’.


 


[15]     
This evidence must have warned the arbitrator that Mr Gertze knew
what he expected the panellists to do and that possibly the
panellists failed to do what they were supposed to do.  He knew
that he was not a rubber stamp for panellists but had the authority
and the power not to follow recommendations he did not agree with.


 


[16]     
To satisfy himself why all three candidates scored the same points,
Mr Gertze looked in the file for a reason – why it happened. 
The following is what he found why he found Mr Mbangu, a better
candidate for the post: ‘Then I realised when I read through
what the panellists have been writing, the summary comments awarded
or given to Mr Mbangu seemed to be better comments than that assigned
or attached to the other two.  The other thing that I considered
was the number of years or the experience of the three candidates’. 
Why the arbitrator says that Mr Gertze, exercised his discretionary
powers unreasonably because he deviated from the interview panel, is
hard to understand.  It is not in dispute that Mr Mbangu has
more years of experience in the section than the respondent -
meanwhile the third candidate had no experience of the work. 
What Mr Gertze did to look in the file for more information was not
only a reasonable step taken in the exercise of his discretionary
powers, but also crucial for the decision he made in my view.


 


[17]     
In his oral submission, Mr Hinda, counsel for the respondent,
complained about the lack of evidence of the content of the
favourable comments made by the panellists in favour of Mr Mbangu. 
Mr Hinda argues that the arbitrator was denied the opportunity of
hearing the facts.  Further, he contended that the record of the
arbitral proceedings is conspicuously silent on what the comments he
got from the his colleagues.  But the fact of the matter is that
Mr Gertze told the arbitrator he consulted Messrs Gerber and another
colleague of his both who indicated to him that according to them, Mr
Mbangu was a better candidate for the position.  That evidence
was not disputed or challenged in cross-examination by the
representative of the respondent.  Therefore, in my view, the
evidence of favourable comments stands.  If Mr Gertze was
invited by the representative of the respondent or by the arbitrator
to share with them the favourable comments made by his colleagues, he
would have done so.  Mr Hinda cannot now ask what favourable
comments were made in favour of Mr Mbangu.  Mr Podewiltz who
represented the respondent at the arbitration was in a better
position to ask Mr Gertze to tell the arbitrator about these
comments, but he did not.


 


[18]     
Therefore, and in view of the facts that the arbitrator himself also
conceded in his assessment of the evidence that a recommendation is
not final; and in particular, when Mr Gertze testified that he took
time to consider the recommendation of the panellists, it is my view
that the appellant, through Mr Gertze, did not exercise his
discretionary powers unreasonably by deviating from the
recommendation of the interview panel.  The finding of the
arbitrator is wrong and on this ground alone the appellant can
succeed.


 


[19]     
With regard ground 2, there is no doubt that the arbitrator
over-emphasized the alleged discrimination at the expense of other
factors considered and taken into account by Mr Gertze in promoting
Mr Mbangu in the post of Senior Storeman.  This appears from the
arguments and the analysis of the evidence by the arbitrator. 
From departure, the arbitrator kicked off with affirmative action and
a reference to section 5(2)[3],
and deliberately ignored the provisions of subsection (4)[4]
of which paragraphs (a)-(c) thereof read as follows:


           
(4)      
For the purpose of subsection (2) it is not discrimination –


           
(a)       
to take any affirmative action measure to ensure that racially
disadvantaged
persons,
women or persons with disabilities-


                       
(i)        
enjoy employment opportunities at all levels of employment that are
at least equal to those enjoyed by other employees of the same
employer; and


                       
(ii)       
are
equitably represented in the workforce of an employer
;


           
(b)       
to
select any person for purposes of employment or occupation according
to reasonable criteria, including but not limited to, the ability,
capacity, productivity and conduct of that person

or in respect of the operation requirements and needs of the
particular work or occupation in the industry in questions;


           
(c)       
to distinguish, exclude or prefer any individual on the basis of an
inherent requirement of a job;” (Emphasis added)


 


[20]     
The appellant, amongst other things, was alive to the provisions of
section 5(3) and (4) of the Labour Act, but in doing so, in my view,
did also not forget that it has to comply with the Affirmative Action
(Employment) Act, 1998[5], of
which some provisions thereof are included in its Recruitment Policy
and Guidelines.  In her evidence, Mrs Nakaziko, who testified as
a witness for the appellant corroborated the evidence of Mr Gertze in
many respects.


 


[21]     
As already pointed out, the arbitrator came to a wrong conclusion in
his assessment of the evidence because he assessed the evidence piece
meal.  There was a duty upon the appellant to consider
affirmative action only if both Mr Mbangu and the respondent were
equally suitably qualified for the post.  However, in the
instant matter, it was not the case. Mr Mbangu edged the respondent
in some respects, therefore affirmative action was not an issue to be
considered.  I failed to find any evidence or facts established
by the respondent to prove the discrimination she is complaining
about, also that she deserves to be promoted in the position than Mr
Mbangu.  She scored the same points as Mr Mbangu but with less
experience in the job and no favourable comments from the panellists
compared to Mr Mbangu.  In fact, the respondent, in my view, was
recommended for the post by virtue of her being a female not because
she is better suitable for the post than her colleague Mr Mbangu. 
Before I conclude, I wish to point out again that the appellant did
not discriminate against the respondent. 


 


[22]     
The respondent should not think that being a previously disadvantaged
woman armed with Affirmative Action (Employment) Act, is entitled to
be wheel barrowed into a position even though not better qualified
and suitable above her better suitably qualified previously
disadvantaged male counterpart.  In doing so, quality delivery
of service will be compromised.


 


[23]     
For the reasons herein before stated, I agree with Mr Töttemeyer,
for the appellant, that section 19 of the Affirmative Action
(Employment) Act, is only one of the numerous factors one must take
into account in balancing various criteria in order to come to a
rational conclusion – that it is not a matter of ticking boxes
to merely look at section 19 and say, you are a black man, you fall
in one category and you are a black woman, in two categories,
therefore you get the post.  A number of other factors have to
be taken into account which the arbitrator failed to consider in this
matter.  Secondly, the respondent also failed to establish that
she has been discriminated against on the ground of ethnicity by the
City by not giving her the post.


 


[24]     
For the reasons mentioned above and also taking into account written
and oral submissions of both counsel as well as the many case law
referred to as authorities, I shall allow the appeal.  In the
result the following order is made:


           
1.        
The appeal is upheld.


           
2.        
The award by the arbitrator issued on 16 December 2011 in favour of
the respondent is set aside.


3.        
The decision of the Strategic Executive:  Finance to promote Mr
Mbangu into the position of Senior Storeman is confirmed.










PE
Unengu






Acting






APPEARANCE


 


For
the appellant:               
                                                        Adv
R Töttemeyer SC


(and
with him) Adv Phatela


Instr.
by Hengari, Kangueehi & Kavendjii Inc


 


or
the
respondent:                                                                            
Adv G Hinda SC


Instr.
by Murorua & Associates







[1]
Of the Labour Act, 2007 (Act 11 of 2007), (The
Act)




[2]
Unreported judgment of Municipal Council of City
of Windhoek v Erna Ochurus (LC 03/2012)[2012] NAHCMD 3 (4 October
2012)




[3]
Of the Labour Act, 11 of 2007




[4]
Section 5 of the Labour Act




[5]
Act 29 of 1998