In Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining Council and Others [2020] 4 BLLR 353 (LAC), the employee referred an unfair labour practice dispute relating to a promotion as a result of his employer’s refusal to promote him after acting in a senior managerial position for several years. The employee had initially been requested to act in the position temporarily when the holder of that position at the time was seconded to another position. That person was eventually recalled from his secondment, but was placed in another post in January 2009. The position in which the employee was acting was then advertised but before the interview process commenced a moratorium was placed on appointments. The employee then continued to fill the position in an acting capacity for several more years. In April 2011 the position was re-advertised, but for reasons, which are not clear, this vacancy announcement was withdrawn. It was later re-advertised around July 2011 but this time there was a requirement to hold a specific degree of qualification, which the employee did not possess. The employee was of the view that this requirement was included to exclude him from the process. When he was not shortlisted on the basis that he did not have the qualification, he addressed a letter to the employer challenging this. He was then assured that he would be invited to attend an interview and that the qualification requirement had been widened so that he would still be eligible for consideration.
He did attend the interview process and was also recommended for competency testing. The employee and another candidate were found to be the most suitable. The panel recommended that the other candidate be appointed but the employee was advised that if the other candidate declined the post then he would be appointed to the position. The other candidate did in fact decline the post but the post was still not filled.
The employee then referred an unfair labour practice dispute concerning a promotion to the bargaining council on the basis that s 186(2)(a) of the Labour Relations Act 66 of 1995 (the Act) provides that an unfair labour practice includes ‘any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion … of an employee’.
In terms of s 193(4) of the Act, any unfair labour practice dispute referred to arbitration may be determined on terms that the arbitrator deems reasonable. The arbitrator considered the fact that the candidate who had declined the post did not satisfy the experience requirement of the position and was of the view that the employee should have been appointed notwithstanding that he did not meet the qualification requirement and that the refusal to promote was irrational, capricious and unfair. The employer was ordered to appoint the employee to the position with retrospective effect.
The employer took the matter on review to the Labour Court where the review application was dismissed. On appeal to the Labour Appeal Court (LAC), the employer argued, inter alia, that the arbitrator should have deferred to the employer’s prerogative to decide on whom to promote.
The LAC held that when considering such disputes the arbitrator should, in general, show some deference to the decision made by the employer and should exercise caution when ordering the appointment of an employee into a promotion position because there is no right to a promotion. However, the arbitrator may interfere in circumstances where an employer acted capriciously, arbitrarily or in bad faith. In this case, it seemed that the only reason why the employee was not appointed was because he was not in possession of a particular qualification. However, the employer had dispensed with this requirement when the employee was shortlisted for the position and there was no rational explanation for the introduction of rigidly applying the requirement to hold a particular degree. Furthermore, the employee had been acting in the role for several years and had, therefore, already proved his ability and that he was qualified for the role. It was held that the employer’s failure to fill the post when a suitable candidate was available was unreasonable. The employer’s decision not to appoint the employee to the post was, therefore, irrational, capricious and unfair. The appeal was dismissed with costs.
In Archer v The Public School – Pinelands High School and Others [2020] 3 BLLR 235 (LAC), the employee instituted a breach of contract claim in the Labour Court (LC) after initially pursuing an unfair dismissal claim in the Commission for Conciliation, Mediation and Arbitration (CCMA).
In this case, the employee was dismissed and referred an unfair dismissal dispute to the CCMA. The CCMA found that the dismissal was substantively and procedurally fair. The employee elected not to review the CCMA decision but instead instituted an action for breach of contract in the LC, seeking reinstatement of the contract or damages. The employee claimed that he was removed from his place of employment by the school governing body and not his employer and that this was accordingly unlawful. Furthermore, his employer failed to reinstate him or remedy the unlawful actions by the school governing body, which constituted an unlawful breach of contract.
The LC held that it lacked jurisdiction to determine the matter as the matter was precluded by the principle of res judicata on the basis that the claim that he had pursued in the CCMA was essentially the same.
The matter was then taken on appeal to the Labour Appeal Court (LAC). The LAC considered the matter with reference to the decision in Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) in which it was held that dismissed employees may either pursue relief under the Labour Relations Act 66 of 1995 (the Act) or for breach of contract simultaneously or in succession. Based on this, the employee had both contractual and unfair dismissal claims arising from the termination of his contract of employment and these claims were independent of each other. Furthermore, s 77(3) of the Basic Conditions of Employment Act 75 of 1997 provides that in addition to pursuing their rights under the Act, employees may pursue contractual claims in either the High Court or the LC. Section 195 of the Act also provides that an award of compensation made in terms of the Act is in addition to, and not a substitute for, any other amount to which the employee is entitled to in terms of any law, collective agreement or contract of employment. An award of compensation made in terms of the Act is for an unfair dismissal or an unfair labour practice and is capped. This may be less than the amount that the employee can claim for breach of contract and the employee may accordingly claim additional compensation in terms of the breach of contract. This view was also approved in Gcaba v Minister for Safety and Security and Others [2009] 12 BLLR 1145 (CC).
The contractual claim could be pursued in either the High Court or the LC. It was held that the res judicata principle could not apply to the contractual claim because contractual claims and unfair dismissal claims are different causes of action. The LC accordingly did in fact have the jurisdiction to determine a contractual claim despite the fact that there had already been a finding by the CCMA that the dismissal was fair. The appeal was upheld and the matter was remitted to the LC for determination on the merits.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2020 (June) DR 32.
