Hendricks v Commissioner for Conciliation, Mediation and Arbitration and Others (C533/2022) [2025] ZALCCT 64 (11 August 2025)

Case Note

Case: CHARLES HENRY HENDRICKS v COMMISSIONER FOR CONCILIATION, MEDIATION AND ARBITRATION & Others — C533/2022
Court: Labour Court of South Africa, Cape Town | Judge: DE KOCK, AJ | Case no.: C533/2022
Dates: Hearing — 7 August 2025; Judgment — 11 August 2025

Reportability

Reportable: Yes

Cases Cited

• Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) (para [23])
• Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) (para [23])
• Head of the Department of Education v Mofokeng and others (2015) 1 BLLR 50 (LAC) (para [33])
• Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC) (para [27])
• Goliath v Medscheme (Pty) Ltd [1996] 17 ILJ 760 (IC) (para [29])
• Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) (para [51])

Legislation Cited

• Labour Relations Act 66 of 1995; s 162(1)

Rules of Court Cited

None.

HEADNOTE

Summary
This case involved an application for the review of an arbitration award concerning an alleged unfair labour practice related to the applicant's non-appointment as a compliance inspector. The applicant contended that the scoring method used during the interview process was unfair, particularly due to the recusal of a panelist, which resulted in a significantly low score of 1.2 points. The Labour Court found that the second respondent's decision was unreasonable and that the applicant was prejudiced by the scoring method. The court ordered the third respondent to promote the applicant and awarded costs in his favor.

Key Issues - Was the scoring method used in the applicant's interview fair? - Did the second respondent commit an irregularity by concluding that the applicant should not have been shortlisted? - Was the applicant prejudiced by the scoring of 1.2 points?

Held

• The application for the arbitration award to be reviewed and set aside is granted (para [49]).
• The third respondent committed an unfair labour practice in not recommending and appointing the applicant (para [49]).
• The third respondent is ordered to promote the applicant to the position of compliance inspector (para [49]).
• The third respondent is ordered to pay the applicant's costs on an attorney-and-client scale (para [53]).

THE FACTS

The applicant, Charles Henry Hendricks, applied for the position of compliance inspector, having previously worked as a messenger/driver. The position was advertised in December 2015, and Hendricks was one of 30 candidates invited for interviews held on 28 January 2016. During the interview process, the chairperson of the panel recused himself due to personal acquaintance with the applicant, resulting in Hendricks receiving a score of 1.2 from the recused panelist. The other five panelists scored him a total of 99 points, leading to an average score of 16.5 when including the recused panelist's score.

Despite the low score, Hendricks was unhappy with the scoring method and referred an unfair labour practice dispute to the CCMA. After a lengthy delay, the dispute was arbitrated by the second respondent, who ultimately found that Hendricks had not proven that he was subjected to an unfair labour practice.

THE ISSUES

The court was tasked with determining whether the second respondent's findings regarding the scoring method and the applicant's shortlisting were reasonable. Specifically, the court needed to assess if the scoring of 1.2 points was fair and whether the applicant was prejudiced by the decision not to recommend him for the position.

ANALYSIS

The court began by applying the reasonableness standard established in previous case law, particularly in Sidumo & another v Rustenburg Platinum Mines Ltd, which requires that a decision must be one that a reasonable decision-maker could not reach (para [23]). The court found that the second respondent had strayed from the correct inquiry by delving into whether the applicant should have been shortlisted, rather than focusing solely on the fairness of the scoring method used (para [32]).

The court noted that the scoring method employed was grossly unreasonable, particularly the allocation of 1.2 points to the applicant due to the recusal of a panelist. This scoring method was not consistently applied to all candidates, as the remaining candidates were scored by six panelists, leading to a significant disadvantage for Hendricks (para [35]). The court highlighted that the applicant's score could have been calculated more fairly by using the average of the five panelists' scores instead of the arbitrary 1.2 points (para [38]).

Furthermore, the court found that the second respondent's conclusion that the applicant was evasive and unreliable was not supported by the record, undermining the credibility of the arbitration award (para [50]). The court ultimately concluded that the applicant was the second-best candidate based on the scoring and should have been recommended for appointment (para [48]).

ORDER

1. The application for the arbitration award to be reviewed and set aside is granted.
2. The third respondent committed an unfair labour practice in not recommending and appointing the applicant in one of the five posts of compliance inspectors.
3. The third respondent is ordered to promote the applicant to the position of compliance inspector with effect from 5 February 2016 on the salary notch of R257 405.00 per annum.
4. The parties are directed to calculate the difference between what the applicant earned in February 2016 and the amount he would have earned had he been appointed, with specific directives for payment.
5. The third respondent is ordered to pay the applicant's costs in this review application on an attorney-and-client scale, including the costs of counsel.

LEGAL PRINCIPLES

• The reasonableness standard requires that a decision must be one that a reasonable decision-maker could not reach (para [23]).
• An employer's discretion can only be interfered with if it is shown to be exercised capriciously or based on insubstantial reasons (para [28]).
• Irregularities or errors may produce an unreasonable outcome if they materially affect the decision (para [33]).

COSTS

The third respondent is ordered to pay the applicant's costs on an attorney-and-client scale, including the costs of counsel (para [53]).

NOTES

None.