In the matter between:

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1 REPUBLIC OF SOUTH AFRICA Not reportable THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Case no: JS 280/13 In the matter between: RAZIA HASSIM APPLICANT and CHAMBER OF MINES RESPONDENT Heard: 30 August 2015 Heads of argument filed: 2 September 2015 Delivered: 4 September 2015

2 2 JUDGMENT VAN NIEKERK J [1] Ms Hassim, the applicant, was employed by the Chamber of Mines, the respondent, from 1 June 2010 until her retrenchment on 31 October The applicant worked in the Mines Professional Association Secretariat, an entity that provided secretarial and administrative services, through the Chamber, to nine professional associations in the mining industry. In 2012, the associations decided to appoint an alternative service provider. It is not disputed that as a consequence, the applicant s position became redundant. Until then, the applicant had been employed as a Senior Bookkeeper, in the Paterson C3 band. Her primary responsibilities were to process all financial transactions and reports and to prepare financial statements for each of the professional associations to which services were provided by the secretariat. [2] The applicant disputed the fairness of her retrenchment, and after a failed conciliation under the auspices of the CCMA she referred a dispute to this court. Although the terms of the referral are broad, by the time the matter reached trial, the only issue that the court was required to decide was whether the Chamber had acted unfairly by failing to appoint the applicant to the alternative position of Junior Accountant, a position that had fallen vacant after the consultation process had been initiated but before the date on which the applicant s employment was terminated. [3] It is common cause that the advertised position was described as that of a Senior Bookkeeper/Junior Accountant. The job description that was prepared in anticipation of an appointment required certain minimum qualifications and levels of experience. These included possession of a bookkeeping diploma, progress

3 3 toward a B Com (accounting) Degree at a recognised institution with a minimum of credit for the first year of study, a minimum of five years experience in financial accounting in a medium-sized company, ACCPAC experience, and accounting skills up to the point of annual financial statements, with experience at a retirement fund being an advantage. [4] It is also common cause that the applicant chanced on the advertisement on 6 August 2012 before she was informed of it by the Chamber and that she applied for the position. The applicant attended two interviews and was informed ultimately by way of a letter dated 1 October 2012 that her application had been unsuccessful because her levels of experience and qualifications did not meet the advertised minimum requirements. [5] In essence, the issue to be decided is whether applicant s retrenchment could have been avoided by her appointment to the post for which she applied. In particular, the applicant contends that she met the minimum requirements for the post in that she possessed the required qualifications and experience and that with minimal training, she would have been able to perform the job satisfactorily within a reasonable period. Put another way, the court must decide whether, having regard to the Chamber s statutory obligations to avoid retrenchments and to consider alternatives to dismissal, the applicant s retrenchment was unfair because the Chamber failed or refused to appoint the applicant to the vacant post. The evidence led at the trial was limited to that issue. [6] Mr. Harry Groenewald, the Chamber s Executive responsible for finance and administration, was part of the panel that interviewed candidates for the advertised position of Junior Accountant. It is not disputed that Groenewald ultimately decided not to appoint the applicant. He testified that while the applicant was an experienced bookkeeper, she was not in possession of a bookkeeping diploma, she was not studying toward a B Comm. Degree, nor had she completed the first year of study toward that degree. In addition, the applicant had no experience in financial accounting and the accounting functions

4 4 relevant to retirement funds, especially the preparation of reports for the Reserve Bank and the funds actuaries. [7] For all of these reasons, the applicant was not appointed to the position for which she had applied. The upshot of his evidence was that the applicant had an inflated view of the value of her qualifications and experience and that the demands of the advertised position were considerably more onerous than those that applied to a senior bookkeeper administering the accounts of a few professional associations. Groenewald emphasised the regulatory issues relevant to the management of retirement funds and the difference between bookkeeping (the applicant s function until then) and financial accounting (a higher level demand in respect of which the applicant did not have the required experience). In so far as any training might address the skills gap, Groenewald testified that the gap was too big and that in any event, the Chamber required an applicant who could immediately assume duties and discharge the responsibilities associated with the position. [8] In response to questions put by the court, Groenewald testified that the successful applicant, a Mr. Patrick Mathebula, was recruited from an auditing firm. He had extensive experience in dealing with complex financial statements and also the auditing of the retirement funds. He was registered for a B.Comm. Degree and at the time, was in his second year of study. In Groenewald s opinion, Mathebula was a better candidate for the job than the applicant. [9] In her evidence, the applicant conceded that the Chamber had not acted unfairly by advertising the vacant post on the internet prior to informing her of the vacancy. The undisputed evidence was that the Chamber had intended, through internal channels, to notify the applicant of the vacancy and that she was indeed notified a day or so after the posting of the advertisement on the Internet. In these circumstances, the applicant conceded that she had suffered no prejudice on account of any failure by the Chamber to notify her of the vacancy before posting it on the internet.

5 5 [10] In relation to the post itself, the applicant contended that her qualifications (she has a matric and some credits toward a CIS qualification (including credits for financial accounting I and II, awarded in 1997 and 1998 respectively) was the equivalent of a first year B Comm., and that her skills and experience were sufficiently adequate to meet the demands of the criteria listed in the job description, subject to some training. In short, the applicant contended that her credits in the CIS programme exceeded the equivalent of a bookkeeping diploma and ranked her as a second year B Com student (I should add that these propositions were not put to Groenewald during cross-examination), that her experience in the bookkeeping function relating to the administration of professional associations met the criteria for the advertised post and that with a minimum of training, she could have mastered the reporting functions associated with the position. [11] It is not necessary for me to make any decision relating to the status of the applicant s qualifications or the value of her experience. The applicant conceded that after submitting her application, she had been considered for the post and did not dispute the fairness of the interview and selection process. To the extent that the applicant relied on an undertaking by the Chamber to consider her for appointment to any future suitable position prior to considering the appointment of an individual outside of the Chamber, the Chamber was required to do no more than consider the applicant for any suitable vacancy. This the Chamber did, and the applicant conceded as much. [12] The applicant also conceded that the Chamber was entitled to and had appointed the better applicant for the job. Specifically, she did not dispute that Mathebula s qualifications and experience met the minimum criteria in every respect, and that he met the recommended requirement of experience in relation to the management of retirement funds. In these circumstances, the applicant was hard-pressed to articulate the precise nature of her claim, and in particular, why she thought that she had been unfairly treated.

6 6 [13] The applicable legal principles are well-established. Retrenchment is a no-fault dismissal and generally speaking, any alternatives to retrenchment (including any possibilities of a transfer within the organisation) ought to be explored before an employee is retrenched. Indeed, one of the primary purposes of the statutory consultation process is the exploration of alternatives to dismissal. But fairness does not exist in a vacuum what matters is whether the ultimate decision to retrench was fair. Thus an employer is not required to make a job for a redundant employee where none exists, nor does the employee have an unqualified right to be appointed to any vacant positions that might exist. [14] In a marginally different context, that of unfair labour practices concerning promotion, this court has been reluctant to second-guess the basis on which employers make decisions about appointments. The court recognises that employers have a discretion in respect of whom they choose to promote and provided that the employer does not act in a way that may lead to an inference of mala fides, the court does not interfere. What is paramount is that employers do not act unfairly towards candidates. In a similar vein, in the present instance, and to the extent that the applicant's case is that the Chamber somehow acted unfairly by failing to appoint the applicant to the job for which she had applied, it is clear from the evidence that the Chamber made the decision to appoint Mathebula in good faith, and that there was nothing arbitrary or unfair about that appointment or conversely, about the decision to refuse to appoint the applicant. [15] I did raise with Ms. Khota, the Chamber s Human Resources Manager, why the applicant was invited to an interview (indeed, to a second interview) in circumstances where from the outset it was the Chamber s case that she did not possess the minimum requirements in respect of qualifications and experience that had been stipulated. I did not receive an entirely satisfactory answer to this enquiry but, as I have indicated, the evidence as a whole does not disclose any unfair conduct on the part of the Chamber. [16] I had the sense after hearing the applicant testify that she was aggrieved at her retrenchment in that she thought that the Chamber could have done more to

7 7 accommodate her, especially by placing her in alternative employment, in the form of the vacant post for which she applied. But in the absence of any right to appointment, and given the absence of any evidence to demonstrate that the Chamber, in one way or another, acted unfairly in relation to any available alternatives to retrenchment, I am not persuaded that the applicant s retrenchment was unfair. The applicant's referral therefore stands to be dismissed. [17] In relation to costs, this court has a broad discretion in terms of s 162 of the LRA to make orders for costs according to the demands of the requirements of the law and fairness. This court has been traditionally reluctant to make orders for costs where genuinely aggrieved individuals, misguided as they may be, pursue what they perceive to be their rights against their employers. In my view, the present case falls into that category and for that reason, and given that the applicant s representative is acting pro bono, I do not intend to make any order for costs. I make the following order: 1. The applicant's referral is dismissed. ANDRÉ VAN NIEKERK JUDGE OF THE LABOUR COURT REPRESENTATION: For the applicant: Mr. N Thanyaane, Thaanyane Attorneys For the respondent: Mr. M Khoza, ENS attorneys