Case law for 2012 - Pdf

Case Law for 1012 Compiled by Johanette Rheeder Public Servants’ Association obo Tlowana v Member of the Executive Council for Agriculture (2012) 21 LC 1.11.33 Reported in Butterworths [2012] 8 BLLR 805 (LC) Case No. JR868/10 Judgment Date 24 February 2012 Jurisdiction Labour Court, Braamfontein Judge H Cele Subject Practice and Procedure Appeal and review Keywords practice and procedure - appeal and review - respondent appointing candidate on employment equity grounds who lacked essential qualification for job – appointment irrational and unfair to highest rated candidate – award set aside Mini Summary The applicant employee applied for a vacant post, and was recommended by the selection panel, having been allocated the highest score of the candidates interviewed. The first respondent decided instead to appoint the second rated candidate, a female. A bargaining council arbitrator ruled that the employee had been unfairly treated, but that award was set aside by the Labour Court, and remitted to the council to be heard by another commissioner. The second commissioner also found that no unfair labour practice had been committed. On review of that decision, the applicant raised a number of alleged defects but the Court confined itself to the allegation that the successful candidate lacked the required qualifications for the post. The Court noted that during the arbitration, the issue of whether the respondent had complied with the requirements of the Employment Equity Act 55 of 1998 had been raised. Among the requirements of that Act are that affirmative action must be applied rationally. While it was unnecessary in this case to decide whether the appointment of the fourth respondent was arbitrary or irrational, the fact was that she lacked a qualification described as essential in the advertisement, i.e. knowledge of the PERSAL system. While the MEC’s desire to appoint a female may have been defensible on equity grounds, the fourth respondent should not have been short listed. This had prejudiced the applicant employee. The Court, accordingly, found that the respondent commissioner had failed to apply his mind to the evidence before finding that the employee had no grounds for complaint because the fourth respondent had been properly appointed. The award was accordingly set aside, and the employee awarded compensation. Judgment Cele J: [1] The applicant seeks to have an arbitration award dated 1 March 2010 issued by the third respondent under the auspices of the second respondent reviewed, set aside and substituted in terms of section 158(1)(g) of the Labour Relations Act.1 During the presentation of this matter, and in the event of the applicant being successful, an option that the matter be remitted to the second respondent was tabled. It has been conceded by both representatives that there is no longer any need for such remittal by this Court because all the evidence is before it.