12 Abr Sssbc Agreement 5 Of 1999
The 1999 COLLECTIVE ACCORD ON TRANSFERT AND PROCEDURES 5 (`policy`) In addition to this, the Commissioner does not appear to have taken into account the fact that the SAPs has discretion with respect to the directive to authorize a transfer (in the interest of the AMP) whose assessment must be exercised rationally and without bias or misdirection. Workers do not have the right to transfer within the meaning of the directive. The directive also does not entitle the transfer of a worker, nor does it provide that employees are not transferred. The policy only confirms that “in principle any worker can be transferred” but that certain considerations must be taken into account before making a final decision (paragraph 2). It is clear that the employer has discretion over discretion that cannot be arbitrarily taken without due consideration of the factors outlined in the directive. It goes without saying that the decision should not be taken in a biased or mala fide manner. There is no indication on the documents that the decision-makers did not take into account the considerations listed in the policy. The Nel case appears to be based on the fact that his interests were more restrictive and outweighed that of his employer (response to affidavit point 3.5). I have already indicated that the Commissioner`s decision did not indicate that the decision against the delegation was wrong or that the decision maker was biased. Nor is there any indication that the SAPS decision was irrational; minor considerations were taken into account or that the relevant considerations were ignored by the decision maker. The Commissioner simply found that Nel had more compelling reasons to transfer him and that his interests outweigh those of the SAPS.
With this decision, the Commissioner did follow in the footsteps of the decision-makers and took over the role of employer. Once the Commissioner did so, he made his own value judgment on the merits of the SAPS decision to refuse the transfer. The question that the Commissioner should have asked himself is not whether he would have authorized the transfer in particular circumstances, but whether or not the SAPS followed the procedure set out in the directive. I have already indicated that there is no evidence that SAPS has not implemented the decision-making policy. Indeed, there is every reason to believe that SAPS applied the directive in deciding not to authorise the transfer and, in the application of the directive, SAPS refused the delegation in the interest of SAPS. This is not a case in which SAPS had no valid reason to refuse transmission.