Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (LC) (unreported case no JR369/15, 10-5-2019) (Whitcher J).

Having worked for the applicant municipality for 15 years, during which time he was appointed to act in the post of Operations Officer on numerous occasions, the employee applied for the post in 2013.

However, when he was not shortlisted for the post, the employee referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration claiming the municipality acted unfairly by failing to short-list him.

The arbitrator agreed with the employee’s argument and awarded him a protected promotion as from the date the municipality appointed the second applicant to the post.

A protected promotion is a remedy awarded to employees who successfully prove they ought to have been promoted but for the unfair conduct of the employer. The result of a protected promotion is that the employee retains the position occupied prior to applying for a promotion but is awarded the same remuneration and benefits they would have received had they been appointed to the position. The employee’s status is also elevated to the status concomitant to the post applied for.

Against this award the municipality approached the Labour Court to review and set aside the arbitrator’s findings.

In examining the evidence presented by the parties at arbitration, the court found the employee had presented a prima facie case in establishing an unfair labour practice – he met all the requirements for the post with regard to both qualification and experience, whereas the successful incumbent did not meet the minimum qualifications nor had the required experience. In its defence, the municipality side-stepped the evidence presented by the employee and argued that the appointment was made strictly in accordance with its equity plan. In doing so, the municipality downplayed the minimum requirement set out in the advert.

The court found the arbitrator’s finding that the municipality had committed an unfair labour practice, was not susceptible to being reviewed and set aside. The municipality focused solely on demographics and failed to appreciate the fact that affirmative action measures only apply when both candidates are suitably qualified for the post in question.

On the issue of protected promotion, the court held:

‘The only ground of review which has merit lies against the arbitrator’s decision to award protective promotion. In KwaDukuza Municipality v SALGBC and Others (2009) 30 ILJ 356 (LC) the court ruled that so-called protected promotion is merely a disguised form of compensation, which may not be granted in the absence of proof that the employee has suffered an actual loss and is unlawful if it exceeds the one-year limit on compensation prescribed by the LRA. The award of protected promotion was substituted by an award of compensation equal to 5 months’ salary.

In the present case, while I accept that Mr Pieterse is highly qualified and experienced and was not granted a fair chance to compete for the post, there is insufficient evidence on record to hold that, but for the municipality’s unfair conduct, he would have been promoted. There is no evidence on record about the merits or otherwise of the other candidates who applied for the post. Moreover, in the end, the prerogative to appoint lies with employers, as long as they comply with the basic tenets of fairness, which is, adhere to the minimum requirements of the post, and, where appropriate, grant suitable candidates a fair opportunity to compete for the post.

The appropriate remedy at the time of the arbitration was an order directing the applicant to redo the appointment process from the shortlisting stage, and this still appears to be the most sensible and practical approach considering Mr Pieterse was still acting in the post at the time of the arbitration.’

The court confirmed the award insofar as the finding that the municipality had committed an unfair labour practice, however, substituted the remedy of protected promotion with a finding that the municipality redo the appointment process from the short-listing stage.

Commentary

It may be useful to expand on the ‘but for’ test adopted by the court.

Under circumstances where an employee successfully proves that their employer acted unfairly by not shortlisting them for a position applied for, an arbitrator would seldom (if ever), award the employee a protected promotion.

Without the employee being subjected to a final interview and even possibly undergoing psychometric tests and being ranked or compared against others who took part in the same process; there is nothing that the arbitrator can rely on to justify a finding that the employee would have been appointed had they been shortlisted. In Sun International Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (LC) (unreported case no JR939/2014, 18-11-2016) (Lagrange J) delivered on 18 November 2016, the court held that an employee claiming they ought to have been appointed to the position applied for, bears the onus to establish that ‘but for’ the employer’s unfair conduct, they would have been appointed.

In adopting this approach and applying the ‘but for’ test, the court in the judgment under review found that there was no evidence before the arbitrator to sustain the argument that ‘but for’ the municipality’s unfair conduct in not shortlisting the employee – he would have been appointed to the position of Operations Officer. It was for this reason that the court set aside the remedy of a protected promotion.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2019 (July) DR 28.