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[2011] ZALCJHB 45
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Matjhabeng Municipality v Mothupi NO and Others (JR2421/04) [2011] ZALCJHB 45; (2011) 32 ILJ 2154 (LC) (12 April 2011)
Page
19
of
23
Case
No: JR
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case No: JR2421/04
Reportable
and of interest to other Judges
In
the matter between
MATJHABENG
MUNICIPALITY
…..............................................................
APPLICANT
and
TSHEDISO
MOTHUPI N.O.
…......................................................
FIRST
RESPONDENT
CCMA
– FREE STATE PROVINCE
…....................................
SECOND
RESPONDENT
MOIKETSI
BONTIKI MOGOTSI
…..............................................
THIRD
RESPONDENT
JUDGMENT
SHAI
AJ
INTRODUCTION
[1] This is an application by the
Applicant that seeks to review and set aside of an arbitration award,
“
the award”
, issued by First Respondent, the
“
commissioner”
under case no FS5533-02 dated 1
September 2004 under the auspices of the Second Respondent, the
“CCMA”.
[2] Further that, the Applicant seeks
an order granting condonation for its late filing of the application
for review.
[3] The Third Respondent referred a
dispute to the CCMA for conciliation for an alleged Unfair Labour
Practice on the basis of discrimination
in terms of the
Employment
Equity Act 55 of 1998
, which dispute allegedly arose on the 13
th
June 2002.
[4] A Certificate of Outcome was
issued by the CCMA on 31 December 2002 in terms of which the dispute
remained unresolved and it
was certified that the dispute can be
referred to arbitration.
[5] The Third Respondent subsequently
requested arbitration. The arbitration was held on 9 October 2003.
The said award was issued
on the 1
st
September 2004.
[6] It appears that at during the
course of the arbitration hearing the Commissioner informed the
parties that as the matter pertained
to discrimination he lacks the
jurisdiction to deal with the matter. The parties there after
consented to jurisdiction in terms
of
section 10(6)
(b) of the
Employment Equity Act 55 of 1998
.
[7] It is the award that is subject to
the review application.
[8] The Applicant received the said
award on the 2
nd
September 2004. The application for
review should have been lodged on or before 14 October 2004. However,
the review application
was properly served on the 18 October 2004,
two days late. The Third Respondent was however, served on the 15
October 2004.
[9] It is this late filing that the
Applicant applies for condonation.
THE FACTS
[10] The Applicant advertised a
vacancy for an Executive Manager: Public Safety and Transport and
Third Respondent applied for the
position. Thirty-one applications
were received for the position and five candidates were invited for
the interviews. Third Respondent
was not short listed. Mr. X E
Dasheka was eventually appointed in the position with effect from 1
August 2002.
[11] Applicant contends that because
the said executive manager is the manager directly accountable to
Municipal Manager, his appointment
was done in accordance with
Section 56
and
57
of the
Local Government: Municipal Systems Act 32
of 2000
.
[12] In terms of
Section 56
(b) of the
said Act, “
such a person appointed as a manager in terms of
Section 56(a)
must have the relevant skills and expertise to perform
the duties associated with the post in question, taking into account
the
protection or advancement of persons or categories of persons
disadvantaged by unfair discrimination.”
[13] Subsequent to the short listing
and the interviews a report with re-commendation was submitted to the
Council. The qualifications
of the five short listed candidates who
were interviewed, were set out in this document and after
consideration of the recommendations,
resolved that Mr. Dasheka be
appointed.
[14] The advertisement of the vacancy
set out the responsibilities as well as the qualifications of the
said post. The responsibilities
of the position were recorded as
follows on the advert:
“
Reporting
to the Municipal Manager, the incumbent will accept responsibility
for executive management of the Department Public Safety
and
Transport which includes: Emergency services; Fire Fighting and
Prevention; Rescue Services; Emergency Training Centre etc.
Public
Safety and Transport; Law Enforcement and Administration function,
educating the public etc. Security; Coordinating the
planning,
organization, motivation, control of secure programme of Council in
order to protect Councilors and personnel in their
official capacity,
records, interest and property of Council. Civil Defence: Prepare the
community for possible disasters and assist
during state of
emergency.”
[15] The qualifications for the post
were recorded as follows in the said advert:
“
Qualifications:
The ideal candidate will have an appropriate B-Degree or equivalent
with broad knowledge of the abovementioned spheres
of responsibility.
At least (4) four years experience in a decision making post will be
an advantage.”
[16] The Third Respondent’s case
was that he had the required qualifications for the said position and
that he also had at
least 4 (four) years experience in a decision
making post which according to the advertisement it will be an
advantage. The Third
Respondent was neither shortlisted nor
appointed.
[17] The Third Respondent was of the
view that he was better qualified, experienced and knowledgeable and
suitable for the position
as opposed to Mr. Dasheka who was
eventually appointed. Upon enquiry he was told by the Applicant that
he did not meet the requirements
stipulated in the advertisement.
According to him the Applicant unfairly discriminated against him.
[18] Applicant’s evidence was to
the effect that Third Respondent was not, as alleged, a better
qualified, experienced, knowledgeable
and suitable candidate as
opposed to Mr. Dasheka. The applicant’s evidence was that
experience the Third Respondent had,
was not relevant to the scope of
work stipulated in the advertisement. Applicant’s further
evidence was that if in case the
second respondent find that there
was discrimination such discrimination was not unfair as it was based
on inherent requirement
of the job.
[19] The Commissioner found as
follows:
“
The
conduct of the Respondent (Applicant in this application) amounted to
unfair discrimination against the Third Respondent on
the basis that
the Applicant failed to discharge the onus of proving that the
discrimination was as a result of inherent in requirements,
which
were justified and fair”
GROUNDS FOR REVIEW
[20] The Applicant raises the
following complaints against the Commissioners award:
[20.1] The referral by the Third
Respondent referred to unfair labour practice and unfair
discrimination during the short listing
process and not during the
appointment process. Despite this the commissioner ordered
compensation as though Third Respondent should
have been appointed in
the position, without proving that if he was short listed he would
have been appointed to the post, hereby
exceeding his powers. No
evidence was led comparing himself to the short listed candidates in
terms of qualifications and experience.
[20.2] The Commissioner ignored the
evidence of the other Applicant’s witnesses.
[20.3] That it appears that the
Commissioner made his finding that Third Respondent was discriminated
against merely on the basis
of lack of experience on the premise that
Section 20(5)
of
Employment Equity Act is
applicable in this
instance.
[20.4] That it was evident from the
evidence presented on behalf of Applicant that the affirmative action
did not play any role
in the decision as to which candidate to
appoint.
In fact it is evident from the
evidence that Third Respondent actually supported a case to the
effect that Applicant wrongfully
did not apply affirmative action
when making its decision who to appoint, therefore such a finding is
not justifiable on the basis
of evidence presented during the
arbitration hearing.
[20.5] The Commissioner committed
gross irregularities in the conduct of arbitration proceedings in
that First Respondent committed
a material error of law pertaining to
onus in the instance. On the basis of the evidence presented to the
First Respondent, the
Commissioner should have conducted the
proceedings on the basis that considering that the discrimination
Third Respondent complained
of was on an unlisted ground, the
commissioner should have borne in mind that the Third Respondent have
a more enormous burden
than someone who complained for discrimination
on an unlisted ground. The Commissioner should have considered the
evidence on the
basis that neither discrimination nor unfairness were
presumed, it was the task of the Third Respondent to prove both. In
the instance
the arbitration was conducted on the basis that the
Applicant was called to justify the discrimination even without Third
Respondent
having presented evidence to establish the discrimination,
on the unfairness of the alleged discrimination.
[20.6] There are no facts upon which
the conclusion which First Respondent reached with regard to the
issue of an inherent job requirement,
can be reasonable justified.
[20.7] The Commissioner exceeded his
powers in that the order of compensation he made is not justifiable
and no reasons were given
as justification that the said order is
just and equitable.
THE APPLICATION FOR CONDONATION
[21] As highlighted above the
application for review and setting aside the award was filed two days
late. It appears that the Respondent
instead of opposing the
application for condonation then accepted to the late filing of the
review application. At the hearing
of this matter the third
respondent did not pursue this matter further nor opposed the
application.
[22] The Applicant’s attorney
explained the delay on the basis that the Counsel he briefed
furnished him with the documents
late. As a result of other
commitments and the fact that he conducts one man practice he could
not file the review application
immediately although he managed to do
so two days later.
[23] The Counsel who was tasked to
draft the said documents indicated in his affidavit that he had
planned to furnish the attorney
for the applicant with the necessary
documents in time but his schedule became unexpectedly hectic, which
included attending full
bench appeal in the High Court in
Bloemfontein, attending to Pule Ramasimong v Mala Municipality etc.
[24] Applicant is of the view that the
Respondents will suffer no irreparable harm if the application is
granted.
[25] Applicant further contends that
it has good prospects of success on its review application. In the
review application the applicant
raised a number of irregularities
against the commissioner including error of law in respect of onus in
discrimination matters,
granting of compensation with out giving
reason for such an order etc.
[26]
The factors
that need to be taken into account when determining whether there is
sufficient cause to grant condonation were set
out in
Melane
v Santam Insurance Co Ltd 1962 (4) SA
at
532 and involves weighing together the following factors; which are
interrelated : degree of lateness, explanation thereof, the
prospects
of success and the importance of the case. The court went on and said
that although these factors are interrelated, and
are not
individually decisive, if there are no prospects of success there
would be no point in granting condonation.
[27]
In the case of
Kritzinger v CCMA and Others (JR 2254/05
(2007) ZALC 85
(November 2007)
Molahlehi
J said the following in relation to the test as inunciated in
Melane
v Santam Insurance Co. Ltd.
1962 (4) SA A532:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance,
a good explanation for the delay in lateness may assist the applicant
in compensation for weak prospects of success.
Similarly strong
prospects of success may compensate for the inadequate explanation
and the long delays”
[28] In this case the review
application was filed two days late which is not excessive. From the
explanation I am satisfied that
there was no intentional or gross
negligence or ineptitude on the part of applicant, its attorneys or
the Counsel. I’m of
the view that it is properly explained.
Taking into account the prospects of success as outlined in the
papers it is my conclusion
that there is sufficient cause to grant
condonation. The application for the condonation is therefore
granted.
THE REVIEW APPLICATION
[29] The law is now settled with
regards to the test for review as enunciated in the well known case
of
Sidumo & Another v Rustenburg Platinum Mines LTD &
Others
2008 (2) SA 24
LC
being: “
is the decision reached
by the commissioner one that a reasonable decision maker could not
reach?”.
[30] In
Sidumo Ncgobo J
was of
the opinion that although the provisions of
Section 145
of the LRA
have been suffused by the Constitutional standard, that of reasonable
decision maker, a litigant who wishes to challenge
the arbitration
award under
Section 145(2)
must found his or her cause of action on
one or more of these grounds of review and at 186 he said the
following:
“
The
general powers of review of the Labour Court under
Section 158(1)(g)
are therefore subject to the provisions of
Section 145(2)
which
prescribe grounds upon which arbitral awards of CCMA Commissioners
may be reviewed. These grounds are misconduct by the Commissioner
in
relation to his or her duties; gross irregularity in the conduct of
the proceedings; where Commissioner exceeds his or her powers;
or
where the award was improperly obtained. These are the only grounds
upon which arbitral awards of CCMA Commissioners may be
reviewed by
the Labour Court under
Section 145(2)
of the LRA. It follows
therefore that a litigant who wishes to challenge an arbitral award
under
Section 145(2)
must found his or her cause of action on one or
more of these grounds of review”
[31] On the gross irregularity as a
ground of review
Ncgobo J
said the following:
“
[263]
The basic principle was laid down in the often quoted passage from
Ellis v Morgan [Ellis v Morgan, Ellis v Dessan
1909 TS 576]
where the
court said:
“
But an
irregularity in proceedings does not mean an incorrect judgment; it
refers not to the result, but to the methods of a trial,
such as for
example, some highhanded or mistaken action which has prevented the
aggrieved party from having his case fully and
fairly determined”
[32] The Court went further to say
that:
“
In
Goldfields [Goldfield investments LTD and Another v City Council of
Johannesburg and Another
1938 TPD 551]
, Schreinder J distinguished
between patent irregularity that is, those irregularities that take
place openly as part of the conduct
of the proceedings, on the one
hand, and ‘latent irregularities’’, that is,
irregularities that take place inside
the mind of the judicial
officer, which are only ascertainable from the reasons given on the
decision maker. In the case of latent
irregularities one looks at the
reasons not to determine whether the results is correct but to
determine whether a gross irregularity
occurred during the
proceedings. In both cases, it is not necessary to show intentional
arbitrariness of conduct or any conscious
denial of justice……”
[33] The Court went further to
indicate that in both
Ellis and Goldfields
cases it is clear
that the crucial enquiry is whether the conduct of the decision maker
complained of prevented a fair trial of
issues.
[34] One of the complaints against the
award of the commissioner is that the commissioner committed gross
irregularities in the
conduct of the arbitration proceedings in that
he committed material error of law pertaining to onus. The Third
Respondent alleged
unfair discrimination on the unlisted ground viz.
on the ground of lack of experience.
[35] The commissioner dealt with the
matter as follows:
“
In
this instance the Respondents claim that the discrimination was as a
result of inherent job requirements amounts to mere bare
statements.
The Respondent neither explained what the inherent requirement are
nor what makes it necessary that there should be
such requirements.
If those inherent requirements are not adhered to how will that have
an adverse effect. In essence what I am
trying to show is that the
Respondent failed to discharge its onus by showing that the said
requirements are necessary and as such
the said discrimination
against the applicant is justified and indeed fair.”
[36] It was also the contention of the
Applicant that the Third Respondent did not possess the required
experience.
[37] The test for determining whether
an act constitue unfair discrimination was stated in
Harksen v
Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
at 324 – 325
as
follows:
(a) Does the provision differentiate
between people or categories of people?.....
(b) Does the differentiation amount to
unfair discrimination? This requires a two-stage analysis:
“
(i)
Firstly, does the differentiation amount to discrimination? If it is
on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether, objectively
the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons
as human
beings, or to affect them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to ‘discrimination’, does
it amount to ‘unfair discrimination’? If it
has been
found to have been on specified ground, then unfairness will be
presumed. If on an unspecified ground, then unfairness
will have to
be established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination on
the complaint and
other in his or her situation…….”
[38] Prof. Carole Cooper, Boundaries
of Employment Equity, Industrial Law Journal, commenting on
Harmse
v City of Cape Town 2003 24 ILJ 1130 LC
said the following:
“
An
Applicant alleging indirect unfair discrimination would have to show
that a failure to appoint solely on the basis of lack of
relevant
experience would have a disproportionately adverse effect on the
members of a group (in this case black people) and would
therefore
amount to unfair discrimination on the basis of race”
[39] She went further and said: “
A
final point in relation to unfair discrimination on the basis of lack
of relevance experience relates to the notion of fair/unfairness…..As
with the other grounds of discrimination in
section 6
of
Employment
Equity Act of 1998
this suggest that this might be the same if it
could be shown that a requirement of relevant experience was an
inherent requirement
of the job.”
[40] It is clear from the foregoing
paragraphs that a litigant who found a cause of action on unfair
discrimination based on an
unlisted ground bears the onus to
establish the discrimination and to prove that such discrimination is
unfair. See also
Matthews Chizunza v MTN and Others (LC)
(JS623/07).
[41] The applicant has the right to
raise a defence of inherent requirement of the job in defence of such
a claim. The raising of
such a defence by the applicant cannot be
elevated to the level of an onus to prove that such inherent
requirement of the job is
not unfair.
[42] The onus lies with the Third
Respondent that the said discrimination on the basis of lack of
experience is unfair and not the
other way around. Consequently the
commissioner committed an error of law which in turn has affected the
trial of facts.
[43] It was the Third Respondent’s
case that he had the relevant experience in that he was a project
manager and also a project
manager intern. He also testified that he
was trained lawyer and that at the time of the application he had
passed two courses
towards his attorney’s board exam. In as far
as security issues are concerned he said he had criminology as a
course which
dealt with security issues.
[44] It was also the applicant’s
case that such experience was not relevant and sufficient hence why
he was not shortlisted.
The applicant needed someone who could start
running from the start as it did not have capacity to training
someone who needed
training.
[45] Secondly, it is contended that
the commissioner exceeded his powers in that the order of
compensation he made is not justifiable
and no reasons were given in
justification that the said order is just and equitable. It was
decided in a number of court cases
that failure to give reasons is
not per se a reviewable irregularity. This is so especially where the
reasons can be inferred from
the body of evidence before the
commissioner. See in this regard
ABSA Brokers (Pty) Ltd v Moshoana
NO & Others
(2005) 14 LAC 1.11.11
reported also at
[2005] JOL
14644
LAC, at paragraph [44] and [47], Bezuidenhout v Jonhston No &
Others (2006) 15 (LC) 1.11.11, reported also at
[2006] 12 BLR 1131
LC,
[2006] JOL 17962
(LC) at paragraphs 57 – 59
.
[46] However, in the case of
Mahlakoane v Commissioner, CCMA & Another
(2010) 10 BLLR 1061
(LC) the Commissioner in reference to compensation said simply that
an award of two months’ compensation would be “just
and
equitable”, nothing more nothing less. There was nothing in the
award to indicate how the commissioner arrived at the
amount of
compensation. The court held that the failure by the commissioner to
give reasons therefore constituted a reviewable
irregularity.
[47] In the current case evidence was
led that the incumbent of the contested post would receive R250
000.00 per annum. The commissioner
then decided that R250 000.00 was
a just and equitable amount without giving reasons why he came to
that conclusion. In my opinion
he should have gone further and gave
reasons why he accepted that the said amount was just and equitable,
and perhaps also taken
into account whether the third respondent was
working, how much he was paid etc. Even if he came to the same
conclusion at least
one would know why he came to that conclusion. On
that basis it is my conclusion that such failure on the part of the
commissioner,
to justify the compensation amount to a reviewable
irregularity.
[48] Commissioners should be vigilant
at all times, especially where they decide not to grant compensation
or they grant one or
two months or so compensation, or where the
maximum compensation is granted, to make sure that they give reasons
therefore. Therefore,
commissioners should be careful not subtle the
courts with the task of making inferences from the body of evidence
for the reasons
of the compensation, although the courts will not
fail in their duty in that respect.
[49] Another attack on the award of
the commissioner was that he concluded that the third respondent was
discriminated against on
the ground of lack of experience on the
basis that
section 20
(3) was applicable even though there is no
evidence to support same. The evidence and the argument of the
applicant was that it
did not discriminate against the third
respondent.
[50] The applicant then raised the
defence of inherent requirement of the job in the event that the
commissioner finds that there
was discrimination. The evidence of the
applicant was it needed someone who had hands on experience, someone
who will start running
on the first day of his or her appointment.
The third respondent on the other hand felt that he had the necessary
experience. How
the commissioner came to the conclusion that
affirmative action applied is not clear. This is clearly not borne by
the evidence
led by both parties. To this extend the commissioner has
committed a reviewable irregularity.
[51] The other attack on the
commissioner’s award is that even if it can be accepted that
there was unfair discrimination
by not short listing the third
respondent, the commissioner should have ordered re-advertisement,
repeat short listing process,
this time including the third
respondent.
[52] The third respondent summarized
the facts of the dispute he referred as follows under items 3 of the
Referral Form, “Discrimination
in terms of Employment equity
Act 55 of 1998. I applied for the post of Executive Manager Public
Safety and Transport and I was
not considered for the post i.e. not
short listed.
[53] As a remedy he said the following
at item 4 of the said Referral: “setting aside of the
appointment alternatively compensation
for 5 years ……”
[54] It was the third respondent’s
complaint that he was not short listed. Third respondent only led
evidence to the effect
that he had the required qualifications and
experience and for that reason he should be short listed. No evidence
was led to the
effect that if he was short listed he would have been
appointed as he was a better candidate
visa versa
the
appointed candidate.
[55] However, the nature of the remedy
the Third Respondent prayed for indicate that his claim is not
restricted to short listing
only. The remedy he prayed for clearly
indicate that his claim extends to non-appointment although he may
not have said so in many
words. I accept that the CCMA processes need
not be too formal approach like in a court of law. Even in a court of
law accommodation
in this regard may be made depending on the
sophistication of parties. Also the fact that a party failed to lead
particular evidence
does not mean that he abandoned his claim, it
merely means his case is weaken thereby. I therefore find no fault
with the commissioner’s
finding in this regard.
[56] I have decided in paragraphs 42,
46, 47, and 50 that the commissioner committed reviewable
irregularities for reasons outlined
therein. I deem it unnecessary to
deal with remaining grounds of review.
[57] The applicant in its alternative
prayers prays that in case the court finds that the commissioner has
committed reviewable
irregularities the court should correct the said
award and substitute it with its own decision.
[58] In this respect I have noted that
the cause of action according to the third respondent arose “On
or about 13/06/2002.
This is about ten (10) years ago, which is
clearly not in line with the theme that runs through the
Labour
Relations Act 66 of 1995
, that of speedy resolution of labour
dispute. These are bread and butter issues and should of necessity be
speedily resolved. It
is possible that the interested parties may
have moved on, and witness no longer available and so on. In the
circumstances the
court undertakes to resolve the dispute for the
parties.
[59] The applicant advertised a post
of executive manager as outlined in paragraph 14.
[60] In doing so it complied with the
provisions of
section 54(1).
The said provision required that the
appointed candidate must have the following relevant skills and
expertise to perform the duties
associated with the post in question,
taking into account the protection or advancement of persons or
categories of persons disadvantaged
by unfair discrimination.
[61] The third respondent applied for
the post but was not short listed, and obviously not considered for
appointment and the reasons
given to him on enquiry was that he did
not meet the requirements of the advertisement.
[62] It is common cause that the third
respondent lodged his dispute with the CCMA and when the dispute
remained unresolved the
matter went for arbitration. During the
arbitration and almost at the end of the arbitration the commissioner
realized that he
did not have the necessary jurisdiction to arbitrate
the dispute as it pertained to discrimination. At that stage parties
conferred
jurisdiction on the commissioner as describe elsewhere in
the judgment and ratified what happened at the beginning until then.
[63] It is trite that in our law a
litigant who found the cause of action on unlisted grounds of
discrimination bears the onus to
prove such discrimination as well as
the unfairness thereof.
[64] The third respondent led evidence
about his qualifications which included a law degree, a labour law
diploma and a number of
courses. He also led evidence of his
experience which included, industrial relations clerkship, as a
project coordinator and that
he was at the time an apprentice
manager. He did not indicate how long he was in this position but one
can assume by virtue of
its title it was not for long. He testified
further as a project coordinator he was in decision making position.
Looking at his
profile clearly he lacked the broad knowledge and
experience as determined in the advertisement. In his own words he
was in an
apprentice manager position, far from the four years
required to put him in an advantage position visa verse the other
candidates.
[65] Mr Dasheka the appointed
candidate had the following qualifications: BML Diploma, Examiner of
Drivers Licenses; Diploma in
Inspector of Licenses; Diploma Examiner
of Vehicles and Diploma and Bacculaureus Legum. Looking at the his
qualification Mr. Dasheka
appears to have broad experience in
transport issues and further that he has acted in that position for
example between 21/04/1998
to 31/07/1998. Clearly he has been
involved in this matter for a considerable time.
[66] The third respondent did not lead
evidence to the effect that he was a better candidate than the person
who was short listed
and finally appointed.
[67] However, looking at the
qualification and experience it is clear that the third respondent
did not have the required experience
while Mr. Dasheka had the
necessary experience and has acted in that position before, for
example from 21/04/1998 to 31/07/1998.
[68] It is clear to me looking at the
profile of the two candidates that Mr. Dasheka was a better candidate
than the third respondent.
Further that, looking at the shortlisted
candidates’ profiles, it becomes clear that they had experience
in either transport
or security or safety spheres while the third
respondent lacks this experience. It was the applicant’s
evidence that the
appointed person needed to at least have experience
in one or of the two spheres.
[69] Given the fact that the third
respondent bore the onus to prove discrimination and unfairness
thereof I have come to the conclusion
that he did not proof any
discrimination and unfairness thereof if any. Even if I were to say
that he had proved discrimination
such discrimination is not unfair.
The applicant in advertising in the manner it did by requiring the
stated qualifications and
experiences it was doing so in compliance
with legislation that governs it in respect of inherent requirements
of that post. It
was necessary that the incumbent comply with the
requirements as stated in that legislation. It is the prerogative of
the employer
to determine the requirements of any post to ensure
delivery on its mandate.
[70] In the premise I make the
following order:
1. The commissioner’s award
issued under case No FS 5533/02 is reviewed and set aside and
substituted as follows:
1.1 The conduct of the Applicant in
this application did not amount to unfair discrimination.
1.2 No order as to costs is made.
________________________
SHAI
AJ
DATE OF HEARING
:
09
February 2011
DATE OF JUDGMENT
:
12
April 2011
FOR THE APPLICANT:
Advocate Hulley
INSTRUCTED BY:
L.P.
Grimsel Attorneys
FOR THE RESPONDENT:
Mr
Golberg
INSTRUCTED
BY:
Jansen Labour Court Attorneys