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[2015] ZALCJHB 332
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Mbatha v Safety and Security Sectoral Bargaining Council and Others (JR372/13) [2015] ZALCJHB 332 (30 September 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR372/13
In
the matter between:
E N MBATHA
Applicant
And
SAFETY AND SECURITY
SECTORAL BARGAINING COUNCIL
First Respondent
I A SIRKHOT NO
Second Respondent
SOUTH AFRICAN
POLICE SERVICE
Third Respondent
E NKOSI
Fourth Respondent
Heard:
7
May 2015
Delivered:
30
September 2015
Summary:
Review application- commissioner dismissing an unfair labour practice
claim relating to promotion even though the employer
had failed to
give reasons for its decision not to shortlist an employee whose
application satisfied all requirements and appointing
an employee who
did not meet the minimum requirements for the post. The award
reviewed and set aside.
JUDGMENT
RALEHOKO
AJ
Introduction
[1]
The applicant, Mbatha, seeks an order in
terms of section 145 of the Labour Relations Act No 66 of 1995 (LRA)
reviewing and setting
aside an arbitration award dated 12 November
2012 issued under the auspices of the Safety and Security
Sectoral Bargaining
Council (SSSBC) in case number 156-12/13. In the
award, the second respondent (the commissioner) dismissed an unfair
labour practice
claim which Mbatha had referred to the SSSBC
challenging the third respondent’s (SAPS) decision not to
promote him and to
promote the fourth respondent (Nkosi) instead.
[2]
Mbatha seeks an order substituting the
commissioner’s award to the effect that SAPS committed an
unfair labour practice when
it failed to screen and evaluate his
application, thereby depriving him of the opportunity to be short
listed and sell his candidature
for the position.
[3]
In the alternative, the applicant seeks an
order directing SAPS to screen and evaluate his application, to be
interviewed and if
he is found to be suitable, to be offered
protected promotion.
[4]
The applicant also seeks an order declaring
Nkosi’s appointment to be a nullity and for the matter to be
remitted back to
the SSSBC for a fresh hearing.
The
facts
[5]
Mbatha is employed by SAPS as branch
commander at Lenasia South Police Station. In 2011 he submitted 7
separate applications for
the post of Section Commander: Detective
Services at Colonel level (MMS Band) at 7 stations which had
advertised.
[6]
Mbatha was not appointed to any of the 7
posts that he had applied for. Had he been successful with any of
those applications, Mbatha’s
appointment to the successful post
would have constituted a promotion.
[7]
Although during the arbitration proceedings
Mbatha testified that he was aggrieved that he was unsuccessful in 5
of the 7 posts,
the dispute he referred to the SSSBC singled out one
post, SOW 6/01/2011 Section Commander: Detectives Service for
Dobsonville.
The arbitration proceedings were conducted on that
basis.
[8]
The fourth respondent, Nkosi, was appointed
to the post in question and was joined as a party to the arbitration
proceedings.
[9]
Prior to referring the matter to the SSSBC,
Mbatha lodged an internal grievance in which he requested proof that
his application
had been considered as well as written reasons why he
was not shortlisted.
[10]
Mbatha was furnished with a copy of his
application in respect of the Sebokeng post (one of the 7 seven
applications) but not his
application in respect of the Dobsonville
post.
[11]
During the arbitration proceedings, Mbatha
once again challenged SAPS to produce proof that his application in
respect of the Dobsonville
post had been considered and to furnish
reasons why he had not been shortlisted. SAPS did not produce the
application nor did it
give reasons why he was not shortlisted.
[12]
Mbatha also took issue with SAPS’s
decision to appoint Nkosi, arguing
inter
alia
that Nkosi did not meet the
requirements for the post in many respects. With reference to Nkosi’s
curriculum vitae, Mbatha
pointed out that Nkosi did not have an NQF 4
qualification or Grade 12 which were minimum requirements for the
post as well as
the fact that Nkosi was proficient in only one
official language whereas it was a minimum requirement of the job to
be proficient
in at least two official languages.
[13]
It is evident from Nkosi’s screening
form that he did not meet the minimum requirements for the post.
[14]
During the arbitration proceedigs, Nkosi
cross examined Mbatha on the alleged poor performance of the branch
led by Mbatha. It emerged
that Nkosi was referring to the performance
of his section and that of Mbatha after Nkosi had been appointed to
the post which
was the subject matter of the arbitration proceedings.
As the alleged poor performance post dated the filling of the post,
it would
not have played a part in the decision not to short list
Mbatha.
[15]
SAPS’s only witness during the
arbitration proceedings was Brigadier Pietso Ramatsoele. He was a
member of the selection panel.
He testified that Mbatha’s
application had been considered and that a decision was taken not to
shortlist him. However since
he did not have the documentation before
him, he could not recall the exact reason why Mbatha was not
shortlisted as they had considered
between 200 and 300 applications.
He testified that in most cases a candidate is not shortlisted
because there are more suitable
candidates.
[16]
He could not explain why the relevant
documentation had not been brought to the arbitration proceedings and
speculated that it could
have been due to an administrative error. He
also stated that it was not his responsibility to keep these
documents.
[17]
Ramatsoele testified that Nkosi was
appointed because he had the highest score. He also stated that
during the interviews, Nkosi
proved to be conversant with the job.
However the only recorded reason why Nkosi was recommended is that he
had the highest score.
The
award
[18]
The commissioner recorded the issue to be
decided as whether SAPS had committed an unfair labour practice by
failing to promote
Mbatha. He found as follows:
18.1
contrary to what was submitted by Mbatha,
having occupied the position of Branch Commander was not a
requirement for the job.
18.2
a dispute about courses and requirements
for the job does not amount to an unfair labour practice.
18.3
It is not the commissioner’s function
or responsibility to choose the best candidate for promotion for an
employer but simply
to ensure that in selecting candidates for
promotion, an employer does not act unfairly.
18.4
Section 186(2)(a) is limited to attacks on
the procedure followed by SAPS as well as whether the decision was
grossly unreasonable.
18.5
All that SAPS was required to illustrate
was that it had a rational basis for its decision.
18.6
Mbatha had been considered for the post.
There was documentary evidence and Ramatsoele had testified to that
effect.
18.7
The failure by SAPS to disclose the reasons
why the Applicant was not shortlisted is not sufficiently serious so
as to nullify the
appointment of Nkosi.
18.8
Mbatha had not placed any evidence before
the commissioner that in not promoting him, SAPS was influenced by
other considerations.
[19]
In conclusion, the commissioner found that
the process followed by SAPS which led to the decision not to promote
Mbatha does not
amount to an unfair labour practice. He dismissed
Mbatha’s claim.
Grounds
for review
[20]
Broadly, Mbatha challenges the
commissioner’s findings that SAPS did not commit an unfair
labour practice against him. He
argues that no reasonable decision
maker could have made that finding given the material before the
commissioner. Mbatha also takes
issue with the commissioner’s
findings on SAPS failure to furnish him with reasons for not
shortlisting him.
[21]
The appointment of Nkosi is challenged on
the following grounds:
21.1
Nkosi’s overall score is in fact 20
and not 22 as calculated by all panel members.
21.2
The fact that each candidate was allocated
the same score by each panel member is an indication that the panel
members did not apply
their minds. It was submitted that it is highly
improbable that all 4 panel members would award each candidate the
same score.
21.3
There were two “contradictory”
chairpersons for the panel responsible for shortlisting for the
Dobsonville post. This
submission was not elaborated on and for that
reason l was unable to consider it.
21.4
In his CV, Nkosi misrepresented that he had
a Diploma from the University of Pretoria (the equivalent of NQF6)
whereas in his application
he admitted that he did not have a
diploma. Without a diploma, Nkosi did not meet the additional
requirements for the post.
21.5
One of the panel members, Major General
Ndaba was listed in Nkosi’s application as a work reference and
there is no proof
that this interest was declared.
[22]
Mbatha also complains that the
commissioner allowed him to cross-examine Ramatsoele instead of
allowing his representative to conduct
the cross examination.
[23]
SAPS defends the commissioner’s
findings and further submits that Mbatha’s challenge was
limited to procedural fairness
and not substantive fairness.
[24]
Although Nkosi participated in the
arbitration proceedings, he has not filed opposing papers in the
review application.
Legal
principles
[25]
The
test in reviews is now well settled. An award is reviewable if the
outcome reached by the arbitrator was not one that could
be reached
on the evidence and other material before the arbitrator. (See
Herholdt
v Nedbank Limited and Others
,
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
[2]
).
[26]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Others
[3]
the
court further clarified the review test in the following terms:
[20]
... an award is open to be set aside where an arbitrator (i) fails to
mention a material fact in his award; or (ii) fails to
deal in
his/her award in some way with an issue which has some material
bearing on the issue in dispute; and/or (iii) commits an
error in
respect of the evaluation or considerations of facts presented at the
arbitration. The questions to ask are these: (i)
In terms of his or
her duty to deal with the matter with the minimum of legal
formalities, did the process that the arbitrator
employed give the
parties a full opportunity to have their say in respect of the
dispute? (ii) Did the arbitrator identify the
dispute he was required
to arbitrate (this may in certain cases only become clear after both
parties have led their evidence)?
(iii) Did the arbitrator understand
the nature of the dispute he or she was required to arbitrate? (iv)
Did he or she deal with
the substantial merits of the dispute? and
(v) Is the arbitrator’s decision one that another
decision-maker could reasonably
have arrived at based on the
evidence.
[27]
Section 186(2)(a) of the LRA provides as
follows:
(2)
Unfair labour practice means any unfair act or omission that arises
between
an employer and an employee involving:
(a)unfair conduct by
the employer relating to the promotion...of an employee.
[28]
It
has long been accepted that the decision to promote or not to promote
falls within the managerial prerogative of an employer
and that the
courts will interfere only
where
such discretion was exercised capriciously, or for insubstantial
reasons or based upon a wrong principle or in a biased manner.
[4]
[29]
In more recent cases the courts have
clarified the test to be that of fairness.
[30]
In
Apollo
Tyres SA (Pty) Ltd v CCMA & Others
[5]
,
the
Labour
Appeal Court was dealing with an unfair labour practice relating to a
benefit and quoted from
Du
Toit et al
[6]
with
approval on the meaning of unfairness as follows:
[53]
... unfairness implies a failure to meet an objective standard and
may be taken to include arbitrary,
capricious or inconsistent
conduct, whether negligent or intended.
[31]
In
Noonan
v Safety & Security Sectoral Bargaining Council & Others
[7]
an employee who had been overlooked for a promotion challenged the
decision not to promote him on the grounds that the successful
candidate had failed to disclose information which affected his
suitability for the post. On appeal, the court considered the
“
fairness
of the process
”
[8]
as a whole and came to the conclusion that the employer had committed
an unfair labour practice against the unsuccessful employee
in that
the successful candidate unfairly participated in the selection
process.
[32]
In
City
of Cape Town v SA Municipal Workers Union obo Sylvester &
Others
[9]
the court expressly rejected the notion that the employer has the
prerogative to decide who to appoint and that it should not be
questioned when it exercises that discretion. The court stated that
the proper yardstick was “fairness to both parties”.
[10]
[33]
I will therefore apply the fairness test in
determining whether SAPS committed an unfair labour practice against
Mbatha.
Evaluation
[34]
From the analysis of the evidence by the
commissioner, he appeared to appreciate that fairness is the test in
disputes of this nature
and that as long as there is a rational basis
for a decision, a commissioner must not easily interfere with the
employer’s
decision.
[35]
However, despite being alive to the correct
test, the commisioner failed to apply that test. Instead, the
commissioner adopted the
approach that the employer had a discretion
to choose who to appoint and that it was not his place, as
arbitrator, to interrogate
that exercise of discretion by the
employer. In other words, the commissioner was not prepared to
interrogate whether the employer’s
decision not to promote
Mbatha had a rational basis. The effect of the commissioner’s
approach is that Mbatha was denied
a fair trial.
[36]
The arbitrator starts the analysis of the
evidence by making much of the fact that Mbatha’s case was that
he ought to have
been appointed because he was a branch commander.
But this was contrary to the commisisoner’s own understanding
of Mbatha’s
case. During the arbitration the commissioner
commented that Mbatha’s case was that being a branch commander
gave him a competitive
edge. It is therefore incomprehensible how
when writing the award the commissioner could misrepresent Mbatha’s
case that
he had argued that being a branch commander was a
requirement of the post.
[37]
Then the commissioners goes on to state
that “a dispute regarding the courses and the requirements that
are necessary for
the position do not amount to an unfair labour
practice”. Whatever is meant by that statement, the dispute
that Mbatha referred
to the SSBC was not about courses and
requirements for the position. However the requirements for the post
remained a relevant
factor in determining whether the employer had
acted fairly by preferring a candidate who on the face of it failed
to meet those
requirements. The commissioner ought to have
engaged in that inquiry and his failure to do so, coupled with what
is discussed
below, in my view renders the award reviewable.
[38]
On the question of SAPS reasons for failing
to shortlist Mbatha, the commissioner found that Mbatha’s
application for the
Dobsonville post was considered because there was
documentary proof to that effect and also because Ramatsoele
testified to that
effect.
[39]
But
that finding is not supported by evidence. There was no documentary
proof that Mbatha’s application for the Dobsonville
post had
been considered. The application that was placed before the
commissioner was in respect of the Sebokeng post.
[11]
[40]
Ramatsoele speculated that Mbatha’s
Dobsonville application was not available
possibly
due to an administrative error. He did not elaborate on the possible
administrative error, understandably so because he was not
responsible for keeping these documents. He also stated that SAPS is
a large organisation and that documents get lost. The question
that
the commisisoner ought to have asked is why SAPS did not call the
person who was the custodian of the documents to testify
about what
could have happened to Mbatha’s application which could not be
located.
[41]
In those circumstances the commissioner’s
decision to accept Ramatsoele’s evidence that Mbatha’s
application was
considered, in the absence of proof to that effect,
is a finding that no reasonable decision maker could have arrived at.
Any
reasonable commissioner, faced with those facts, would have
arrived at the conclusion that there was no evidence that Mbatha’s
application for the Dobsonville position had been considered.
[42]
Ramatsoele testified that reasons for not
short listing a candidate had to be recorded and annexed to an
application. In fact this
is required in terms of the National
Instruction No 2/2008. Ramatsolete further testified that the reason
for this was that often
unsuccessful candidates challenge such
decisions and that SAPS relies on what is recorded in the application
forms to defend its
decision not to shortlist a candidate.
[43]
In this case Mbatha’s screening and
application form (where the reasons would have been recorded) was not
placed before the
commissioner. Accordingly it could not be
established with reference to documentation why Mbatha had not been
shortlisted. Without
the application form, Ramatsoele could not
recall why Mbatha was not shortlisted. He stated that they had
considered between 200
and 300 applications and that without Mbatha’s
application before him, he could not recall the reasons why he was
not shortlisted.
He testified that normally candidates are not
shortlisted when there are more suitable candidates available than
them.
[44]
Therefore on the facts, Ramatsoele could
not shed light on the actual reasons why Mbatha was not shortlisted.
On that evidence,
a reasonable commissioner would have found that
SAPS failed to prove that Mbatha’s application had been
considered.
[45]
The
commissioner stated that the failure by SAPS to disclose reasons for
not shortlisting Mbatha was not sufficiently serious enough
to
nullify the appointment of Nkosi. But SAPS failure to furnish the
reasons for not shortlisting Mbatha ought to have been given
much
more weight than that. Without reasons, it was simply impossible to
determine whether there were valid reasons for the decision
not to
shortlist Mbatha.
[12]
Of
course the absence of reasons did not have the effect of
automatically nullifying Nkosi’s appointment, but without
reasons,
it could not be said that SAPS had a rational basis for its
decision not to shortlist Mbatha. It is precisely for this reason
that
Mbatha was constrained in challenging substantive fairness.
Unless he knew the reasons why he was not promoted, he could not
attack
those reasons.
[46]
In any event, the question whether Nkosi
ought to have been preferred over Mbatha or the other candidates for
that matter was a
different issue to the question whether SAPS had a
rational basis for failing to shortlist Mbatha.
[47]
Another finding by the commissioner which
renders the award susceptible to review is that Mbatha failed to lead
evidence that the
decision not to promote him was influenced by other
considerations. But Mbatha was not required to prove that SAPS had
acted in
bad faith by failing to appoint him. Bad faith is just but
one of the considerations and not the only one. The test is simply
that
of fairness.
[48]
The
next question that must necessarily be asked in disputes about a
failure to promote is whether the decision to appoint Nkosi
in
preference to Mbatha was unfair. In other words, the question is
whether but for the unfair or irregular appointment of Nkosi,
Mbatha
would have been promoted ahead of Nkosi.
[13]
[49]
Even though an employer has a prerogative
to choose who to promote, its decision will be found to be irrational
if it is not able
to justify it.
[50]
In this case it is not possible to say with
certainty that Mbatha would have been appointed ahead of Nkosi.
Mbatha did not even
make it to the interviews and without scores, it
is simply impossible to do a comparison of the two.
[51]
The
other challenge for Mbatha on this issue is that no information about
the other shortlisted candidates was placed before the
commissioner
during the arbitration proceedings. It is therefore not known whether
Mbatha was a better candidate than those other
candidates.
[14]
[52]
Even though Mbatha could not show that he
ought to have been appointed, in the absence of cogent reasons why
Nkosi was the preferred
candidate, on paper a comparison of Mbatha
and Nkosi revealed that Mbatha was manifestly a better candidate than
Nkosi.
[53]
On the one hand, Nkosi did not meet the
minimum and additional requirements for the post and on the other
hand, Mbatha’s application
met all the requirements yet he was
not shortlisted. In my view SAPS was required to explain why, despite
not meeting the requirements
for the post, Nkosi was nevetherless
shortlisted. No such explanation was forthcoming.
[54]
Furrthermore, on paper Mbatha had more
qualifications (courses) than Nkosi. Mbatha had a diploma whereas
Nkosi was studying towards
one.
[55]
Unlike Mbatha, Nkosi had never been in a
post of command whereas Mbatha was a branch commander for a period of
5 years.
[56]
Instead of considering all the information
placed before him which pointed to the fact that Mbatha appeared to
be a better candidate
than Nkosi, the commissioner singled out
Mbatha’s evidence about being a branch commander and completely
ignored all the
other evidence which pointed to the fact that SAPS
had dismally failed to defend its decision to appoint Nkosi ahead of
Mbatha.
[57]
SAPS would have been aware that during the
arbitration proceedings it would be required to defend its decision
not to short list
Mbatha and to appoint Nkosi instead. It made no
effort to defend its decision.
[58]
There were some facts which were placed
before the commissioner regarding how Nkosi had been appointed which
ought to have concerned
any reasonable commissioner,
viz
:
58.1
all 5 members of the panel allocated
exactly the same score to each candidate in respect of each category
that they were assessed
on. This was highly improbable.
58.2
all 5 panel members failed to do a simple
mathematical calculation of Nkosi’s total score and allocated
him a score of 22
whereas the total of 9+6+5 is in fact 20. Therefore
Nkosi did not attain the highest score. Booyse attained the highest
score of
70% followed by Nkosi and Kgomo at 66.6%.
58.3
Major General Ndaba, one of the panel
members was listed as Nkosi’s work reference and there is no
indication that this interest
was disclosed as required in terms of
the National Instruction.
[59]
With
that evidence, any reasonable arbitrator would have found that the
selection process was not above board and was irregular.
Instead the
arbitrator chose to distance himself from that inquiry. That is a
gross irregularity that renders the award unreasonable.
[15]
[60]
In conclusion, the commissioner’s
finding that SAPS did not commit an unfair labour practice against
Mbatha is so divorced
from the evidence that it cannot be allowed to
stand. A reasonable arbitrator presented with those facts would have
found that
SAPS committed an unfair labour practice against Mbatha.
[61]
For completeness I have considered Mbatha’s
complaint that the commissioner allowed him and not his
representative to cross
examine Ramatsoele. There is simply no merit
to this complaint. It was Mbatha’s representative who
specifically requested
the commissioner if his “client”
could conduct the cross examination himself.
Others
issues
[62]
Mbatha sought condonation for the late
filing of the review application and SAPS sought condonation for the
late filing of its answering
affidavit. Although SAPS had opposed
Mbatha’s condonation application and the applicant had objected
to the late filing of
the third respondent’s answering
affidavit, in argument l was informed that both condonation
applications were no longer
opposed.
[63]
Mbatha’s explanation for the delay in
launching the review application was rather poor but l have taken
into account his prospects
of success on review, which are excellent.
I therefore grant condonation for the late filing of the review
application.
[64]
SAPS answering affidavit was filed 3 months
after Mbatha filed his supplementary affidavit. The explanation for
the delay proferred
is that “there was a substantive delay
between the period of receiving and processing the matter including
the procurement
of Counsel to deal with the matter in court”.
There can be no debate that this explanation amounts to no
explanation at all
and on that basis alone condonation ought properly
to have been refused. Nevertheless I have decided to dispose of the
matter on
the merits, taking into account SAPS submissions so that
there can be finality in this matter. Only for that reason do l
reluctantly
grant condonation.
Relief
[65]
In my view there is no point in remitting
the matter to the SSSBC. All the information has been placed before
court which is in
as good a position to make a finding on the
appropriate relief.
[66]
Mbatha is entitled to compensation for the
unfairness that he received at the hands of SAPS. In
determining the compensation
payable, l have taken into account that
although Mbatha was treated unfairly, he could not demonstrate that
had he been shortlisted,
he would have been appointed.
[67]
But simply awarding Mbatha compensation
does not address the fact that the evaluation panel committed serious
irregularities in
the appointment of Nkosi. Although Nkosi has
occupied this position for some time now and interfering with that
position is likely
to cause disruptions in the running of the branch,
Nkosi’s appointment was clearly irregular and it cannot be
allowed to
stand. Selection panels ought to realise that unless they
apply their minds during the selection process, a court will not
hesitate
to interfere with that decision.
[68]
In this case the evaluation panel acted
reprehensibly in appointing Nkosi who did not meet the minimum and
additional requirements
for the post. Paragraph 4(8) of the National
Instruction 2/2008 makes provison for the screening of applications
to exclude those
who do not meet the requirements of a post. The
departure from this provision was not explained at all. l have also
taken into
account that the only reason the panel members recommended
Nkosi’s appointment is because he attained the highest score.
But on a proper calculation of the scores, Booyse attained the
highest score of 70% followed by Nkosi and Kgomo who both attained
a
66.6% mark. It leaves one baffled that four senior members in SAPS
acting independently could not do a simple mathematical calculation.
[69]
For those reasons, the appointment of Nkosi
ought to be set aside and a newly constituted evaluation panel must
be set up to consider
the matter afresh. Obviously Nkosi will be
adversely affected by this order but he elected not to oppose the
orders sought.
Costs
[70]
Both parties submitted that costs must
follow the result. I have taken the requirements of law and fairness
into account, especially
the conduct of the members of the selection
panel and SAPS failure to give reasons for its decision not to short
list Mbatha. SAPS
must bear the cost of this application.
Order
[71]
In the premises l make the following order.
71.1
The applicant and the third respondents are
granted condonation for the late filing of the review application and
the answering
affidavit respectively.
71.2
The award is reviewed and set aside and is
substituted with an award that the third respondent committed an
unfair labour practice
against the applicant.
71.3
The third respondent is ordered to pay the
applicant compensation equivalent to 6 month’s salary,
calculated at the applicant’s
current remuneration rate August
2011, within 60 days of this order.
71.4
The appointment of Nkosi to the post of
Section Commander: Detective Services Dobsonville at Colonel level is
hereby set aside.
71.5
The third respondent is ordered to pay the
applicant’s costs.
_______________________
Ralehoko AJ
Acting Judge of the
Labour Court of South Africa
Appearances
For the
Applicant:
Advocate T Govender
Instructed
by:
Thapelo Kharametsane Attorneys
For the Third
Respondent:
Advocates T Mtimunye with Advocate MW Dlamini
Instructed
by:
State Attorney
[1]
(2013)
34 ILJ 2795 (SCA).
[2]
2008
(2) SA 24
CC.
[3]
(2014)
35 ILJ 943
[4]
See
Minister
of Safety & Security v SSSBC & Others
[2010] 4 BLLR 428
(LC) in which the court rejected the notion that
an employer has unfettered discretion when deciding whom to appoint.
[5]
(2013) 34 ILJ 1120 (LAC)
[6]
The
Labour Relations Act of 1995
(2 ed) at 443.
[7]
(2012) 33 ILJ 2597 (LAC).
[8]
Paragraphs 17-46
[9]
(2013) 34 ILJ 1156 (LC).
[10]
Paragraph 14. See also
South
African Police Services v SSSBC & Others
[2010] 8 BLLR 892
(LC) para 15(iv) where the court stated that the
role of the commissioner is to oversee that the employer did not act
unfairly
towards the candidate that was not promoted. See also
City
of Tswane Metropolitan Council v SALGBC & Others
(JR 593/07) [2011] ZALCJHB 154 (26 May 2011) at para 16.
[11]
Inexplicably the form reflects that Mbatha had declared
previous/pending criminal conviction offence when this was not the
case.
[12]
See
SAPS
v Gebashe and Others
[2014] ZALCD 68 (24 November 2014) para 16 where the court commented
that it is “
not
unreasonable to infer that someone who will not explain the reason
for their actions probably has none or knows the reasons
are ones
which cannot justify it, especially if the functionary cannot even
advance an explanation why those reasons, if they
exist, cannot be
made known
.”
[13]
Ndlovu
v CCMA & Others
(D544/99) ZALC 153 (1 March 2000) at para 12.
[14]
See
South
African Police Service v SSSBC & Others
supra para 19 and
National
Commissioner of the South African Police Service v SSSBC &
Others
(JR11802/2002)
[2005] ZALC 67
(21 April 2005) para 12.
[15]
Public
Servants Association obo Tlowana v MEC of Agriculture & Others
(2012) 33 ILJ 2675 (LC) at para 15,
City
of Tswane Metropolitan Council v SALGBC & Others
supra at para 22 and Minister of Home Affairs v GPSSBC & Others
(JR 1128/07)
[2008] ZALC 35
(26 March 2008)