Unfair labour practice relating to promotion

March 1st, 2017
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Sun International Management Pty Ltd v CCMA and Others (LC) (unreported case no JR 939/14, 18-11-2016) (Lagrange J)

By Yashin Bridgemohan

The correct approach for arbitrators to adopt when faced with promotion disputes was set out  in Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1653 (LC) at 1655-6, where the court provided:

‘[T]he questions which the commissioner asked in the first paragraph of that quotation were wholly justifiable questions in relation to a dispute over a matter of promotion. It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise.’

In addition to the above it is also important for an applicant to show as held by the court in  National Commissioner of the SA Police Service v Safety and Security Sectoral Bargaining Council and Others (2005) 26 ILJ 903 (LC),  a causal connection between the unfairness complained of and the prejudice suffered.

Facts

The third respondent applied for a position of an Assistant Mechanical Maintenance Manager in November 2012. His application was, however, unsuccessful. He then challenged the failure to appoint him on various grounds, which he alleged amounted to an unfair labour practice relating to promotion.

At the Commission for Conciliation, Mediation and Arbitration (CCMA), the arbitrator accepted that in order for the third respondent to succeed, it was not enough for him to merely show that he qualified for the post but that he merited the promotion and that the decision to appoint someone else over him was unfair.

The arbitrator upheld the third respondent’s case and awarded him six months remuneration as compensation in light of the fact that no submissions were made why he should award maximum compensation as he had requested.

The applicant then made application to the Labour Court (LC) in Johannesburg to review and set aside an arbitration award.

LC’s judgment

Lagrange J noted that in promotion disputes it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process. It is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him. As such, the main question was, but for the alleged failure to consider internal candidates first, would the third respondent have been appointed?

Lagrange J noted further that the third respondent had conceded that his curriculum vitae did not disclose any managerial experience as required by the advertisement, though he advanced that his supervisory experience was the same. As a result of this, it was absurd to suggest that the applicant did not contest that the third respondent would have been chosen had he been interviewed. The main point was that the applicant argued that the third respondent would not have been chosen because he would not have been interviewed at all because he did not meet the minimum requirements.

Lagrange J noted further that there was also no evidence before the arbitrator as to why the interview process would necessarily have resulted in third respondent’s successful appointment. The arbitrator, having inferred, that the third respondent did have the minimum qualifications, then concluded that he, therefore, was the best candidate, which is illogical. The arbitrator also overlooked that the third respondent needed to show not only that he was a suitable candidate for consideration, but that he was the best candidate, even if he was only compared with the other internal candidates, who incidentally were also found to be insufficiently qualified.

The court accordingly held:

There was insufficient evidence for the arbitrator to reasonably conclude that the third respondent ought to have been short listed on the basis that he met the minimum requirements of the job.

The arbitrator reached the conclusion that the third respondent was the best candidate for the position without sufficient evidence to support such a finding on the probabilities and that accordingly his finding was unreasonable.

Although the arbitrator was aware of the test he was required to apply, he did not follow the principles he ought to have in terms of the judgment in the Ndlovu case, which caused him to misconstrue how he ought to evaluate the evidence before him.

The court accordingly reviewed and set aside the arbitration award.

Conclusion

This judgment is important as it highlights that when an employee raises an unfair labour practice dispute relating to promotion, in order to be successful, it must show that he or she met the inherent requirements of the post in question and that he or she was the best candidate for the post. As well as, that the decision of appointing another individual in preference over said employee was unfair.

Yashin Bridgemohan LLB (UKZN) PG DIP Labour Law (NWU) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.

This article was first published in De Rebus in 2017 (March) DR 33.

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