SUMMARY
| Tshepo Malatji (the “Applicant”), who was an employee of The City of Tshwane Metropolitan Municipality (the “First Respondent”) applied for 8 director positions on 8 February 2013, which positions were advertised by the First Respondent. One of the positions that the Applicant applied for was that of Director of Road Policing, unfortunately the Applicant was not shortlisted. Unsatisfied with the outcome, the Applicant then referred an unfair labour practice dispute to the SALGBC for conciliation. The dispute was heard on 29 November 2016 and a certificate of non-resolution was issued due to the fact that the dispute could not be resolved through conciliation. Thereafter, the matter was referred to arbitration wherein the arbitrator had to determine whether the First Respondent acted unfairly by not promoting the Applicant. Accordingly, the arbitrator dismissed the Applicant’s application on the basis that the Applicant had failed to adduce evidence which proved that the Applicant was entitled to be have been shortlisted by the First Respondent and that such amounted to unfair labour practice. The arbitrator however found that the First Respondent had committed an unfair labour practice against Mr. Mswetweni (the “Third Respondent”) in this application and the second applicant in the arbitration proceedings. |
| Consequently, the arbitrator dismissed the Applicant’s claim and ordered the First Respondent to appoint the Third Respondent to a position equivalent to that of a Director of Road Policing with all financial benefits effective from 1 May 2013. It is due to the finding by the arbitrator that the Applicant brought this review application in terms of section 145 of the Labour Relations Act (the “Act”), which sought to set aside the award by the arbitrator and to substitute same with an order which declared that the Applicant was unfairly denied a promotion and/or appointment and that the First Respondent be ordered to promote the Applicant accordingly. |
| In support of its allegations of gross irregularities the Applicant alleged that the arbitrator: Misinterpreted that basis of the application before him. Failed to consider the dire implications of non-compliance by the First Respondent’s of its own policies and procedures, thereby nullifying the whole recruitment process.Exceeded his powers as an arbitrator in appointing the Third Respondent in the position in question.Allowed the introduction of documentary evidence during cross-examination without giving reasons.Failed to direct the process properly in respect of cross-examination and re-examination. |
In response, the First Respondent contended that there was no factual or legal ground to support the argument by the Applicant that the arbitrator’s decision was that which a reasonable decision-maker could not have reached. Therefore, the court had to determine whether the arbitrator’s decision was one that a reasonable decision-maker could not reach.
HELD
The Court relied on the test laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007] 12 BLLR 1097 (CC) which test was aimed at ensuring that arbitration awards are not lightly interfered with. Further, as was held in Bestel v Astral Operations Ltd and Other [2011] 2 BLLR 129 (LAC) applications for review of arbitration awards are based on the justification of the decision being reviewed rather than an inquiry into whether the said decision is correct. The court thus held that in order for the review application to be successful, the Applicant had to show that the arbitrator’s finding fell outside the scope of reasonableness.
| Section 186(2)(a) of the Act defines unfair labour practice as any act or omission that arises between an employer and an employee involving an unfair conduct by the employer in respect of the promotion, demotion, probation or training of an employer or relating to the provision of benefits to an employee. It is also common cause that in terms of the above section, a promotion entails a move by an existing employee to a higher position that carries a higher status, responsibility as well as authority. Therefore, the onus is on employee to establish that a decision made by an employer constitutes an unfair labour practice. |
| The Court relied on the test laid down inSidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007] 12 BLLR 1097 (CC) which test was aimed at ensuring that arbitration awards are not lightly interfered with. Further, as was held in Bestel v Astral Operations Ltd and Other [2011] 2 BLLR 129 (LAC) applications for review of arbitration awards are based on the justification of the decision being reviewed rather than an inquiry into whether the said decision is correct. The court thus held that in order for the review application to be successful, the Applicant had to show that the arbitrator’s finding fell outside the scope of reasonableness. Section 186(2)(a) of the Act defines unfair labour practice as any act or omission that arises between an employer and an employee involving an unfair conduct by the employer in respect of the promotion, demotion, probation or training of an employer or relating to the provision of benefits to an employee. It is also common cause that in terms of the above section, a promotion entails a move by an existing employee to a higher position that carries a higher status, responsibility as well as authority. Therefore, the onus is on employee to establish that a decision made by an employer constitutes an unfair labour practice. The court, relying on the decision in Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others, (2004) 25 ILJ 248 (LAC) held that in order to be successful in such an application, the Applicant had to establish the existence of a conduct or decision by the First Respondent, and further show that he had been overlooked for a promotion although he possessed the necessary qualifications or experience that the Third Respondent did not possess. Considering the above, the court held that the First Respondent’s conduct was not unfair taking into account the fact that the Applicant had failed to establish that he was entitled to have been shortlisted and to be appointed for the position given that he did not possess the minimum requirements. Therefore, there was no merit to the Applicant’s contention that the arbitrator misconstrued the nature of the dispute and the evidence before him, the application was accordingly dismissed as the court found that the arbitrator’s decision is one that a reasonable decision-maker could reach. |
VALUE
This judgment highlights the importance of an employee alleging unfair labour practice to establish the existence of a conduct on the part the employer, if the said conduct is proven then an inquiry as to whether the conduct was unfair can then follow.
Written by Lindokuhle Mashilo Checked by Omphile Boikanyo
