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[2014] ZALCCT 26
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Melaletsa v CCMA and Others (C 960/12) [2014] ZALCCT 26 (27 May 2014)
REPUBLIC
OF SOUTH AFRICA
NOT
REPORTABLE
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C 960/12
In
the matter between:
Martin
Thatayaone
MELALETSA
.........................................................................................
Applicant
and
CCMA
........................................................................................................................
First
Respondent
COMMISSIONER
GERALD JACOBS
N.O
........................................................
Second
Respondent
KUMBA
IRON ORE
(SISHEN
IRON ORE COMPANY) (PTY)
LTD
.
....................................................
Third
Respondent
WILLIAM
GEORGE
LESING
.
..............................................................................
Fourth
Respondent
JIM
APPIES
.................................................................................................................
Fifth
respondent
LEBOGANG
MOSALA
.............................................................................................
Sixth
respondent
ELMO
ISAACS
........................................................................................................
Seventh
respondent
Heard:
8 May 2014
Delivered:
27 May 2014
Summary:
Review – ULP – LRA s 186(2)(a).
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant employee, Mr Melaletsa, applied for a promotional post with
the third respondent, Kumba Iron Ore (Sishen Iron Ore
Company) (Pty)
Ltd. He was unsuccessful. He referred a dispute to the CCMA (the
first respondent) in terms of s 186(2)(a) of the
LRA
[1]
claiming
an unfair labour practice relating to promotion. The commissioner
(the second respondent) found that the company’s
failure to
shortlist and appoint the employee was not an unfair labour practice.
The employee seeks to have the award reviewed
and set aside.
Background
facts
[2]
The
employee has been working for the company since 1995. In 2009 he
progressed to the position of drilling foreman. On 1 August
2011, the
company advertised the position of “operator coordinator”.
That is a more senior job to that of drilling
foreman. The employee
applied for the promotional post together with four others, namely
Willem Lesing; George Appies; Lebogang
Mosala; and Elmo Isaacs.
[2]
He was unsuccessful. He referred an unfair labour practice dispute to
the CCMA in terms of section 186(2)(a) of the LRA, alleging
unfair
conduct by the employer relating to promotion.
The
award
[3]
The Commissioner came to the following
conclusion:
“
I,
accordingly, find that the respondent’s failure to not [
sic
]
shortlist and appoint the applicant to the post of operations
coordinator does not constitute an unfair labour practice
contemplated
by section 186(2)(a) of the Act.
The
applicant consequently failed to discharge the onus on him to prove
that the respondent’s conduct amounted to an unfair
labour
practice.
The
applicant’s case is dismissed.
There
is no order as to costs.”
[4]
In coming to this conclusion, the
Commissioner accepted that the company’s witness, Ms Lynette de
Kock, simply assumed that
the successful appointees had the relevant
qualifications for the job. He also accepted her evidence that the
appointees preferred
over the employee “were because they
scored higher than the applicant in performance levels.”
Performance levels were
not part of the criteria set out in the
advertisement. The Commissioner went on to say:
“
The
criteria set by prof Rycroft [in an
ILJ
article of October 2007] made it
perfectly clear that by changing the necessary qualifications or
inherent requirement for the job
after the advertisement was unfair
and constitute [
sic
]
an unfair labour practice. Had this been the applicant’s case
he would have proved that the respondent’s conduct constituted
an unfair labour practice. But it was not his case.”
Review
grounds
[5]
Although other grounds of review were
raised on the pleadings, the most significant ground relied upon by
Dr
Cloete
was that at least one of the successful appointees, Mosala (the sixth
respondent), did not meet the minimum criteria as advertised.
Evaluation
/ Analysis
[6]
There was no evidence before the
Commissioner that Mosala met the threshold requirements for
appointment. Despite having been subpoenaed
to produce at the
arbitration all certificates and documents that had to be submitted
with the job applications, and despite his
qualifications being
challenged at arbitration, Mosala could not produce a grade 12
certificate or an open blasting certificate.
Despite this, De Kock
simply assumed that he had the necessary qualifications and the
commissioner accepted that.
Conclusion
[7]
The Commissioner could not reasonably have
found that Mosala was qualified for appointment to the post and that
his selection over
that of the applicant was not unfair, given the
evidence before him. That is a reviewable irregularity.
[8]
Given the nature of this misdirection, this
is a matter that needs to be referred back to the CCMA to enable all
the parties to
put the relevant documentation and evidence before a
different commissioner.
[9]
With regard to costs, I take into account
that there is an ongoing relationship between all the parties
involved. A costs order
is not appropriate in law or fairness.
Order
The
arbitration award of the second respondent, Commissioner Gerald
Jacobs, of 15 November 2012 under case number NC 656-12 is reviewed
and set aside. The dispute is remitted to the first respondent (the
CCMA) for a fresh arbitration before a commissioner other than
the
second respondent.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
Neville
Cloete attorney, Kimberley.
THIRD
RESPONDENT:
Thabang
Mabote of Sishen Iron Ore (Pty) Ltd.
[1]
Labour Relations Act 66 of 1995
.
[2]
The fourth to seventh respondents.