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[2015] ZALCD 62
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Department of Correctional Services v Mhlongo and Others (D977/12) [2015] ZALCD 62 (15 October 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Not Reportable
CASE NO: D977/12
In
the matter between:
DEPARTMENT
OF CORRECTIONAL SERVICES
Applicant
and
E
T MHLONGO
1st Respondent
GENERAL
PUBLIC SERVICE SECTORAL BARGAINING
COUNCIL
2nd Respondent
ERIC
MUZIWEMBEKO KETSEKILE
3rd
Respondent
Heard: 25 July 2014
Delivered: 15 October
2015
Summary judgment:
JUDGMENT
FARRELL AJ
BACKGROUND
a)
This is an Application for the Reviewing and Setting Aside of an
Arbitration
Award of the General Public Service Sectoral Bargaining
Council (“The Bargaining Council”);
b)
An Arbitration Award of the Arbitrator E T Mhlongo (“The
Arbitrator”);
c)
The Review Application was argued on 25 July 2014 in the Labour
Court, Durban;
d)
The Review Applicatio
n
was
dismissed and the Applicant was ordered to pay the Third Respondent
(“The Employee”) costs on a party and party
scale.
e)
The reasons for the Judgment are as follows:-
1.
The Employee applied for the post of Deputy Director Area
Co-ordinator Development
and Care, KwaZulu Natal Region of the
Department of Correctional Services (“The Applicant”).
2.
He was shortlisted, interviewed and recommended for the appointment.
He was never
appointed to the position.
3.
The Employee then referred a dispute to the Bargaining Council
alleging that
the failure to appoint him by the Department of
Correctional Services was an unfair labour practice as described in
the Labour
Relations Act
[1]
.
4.
The dispute relating to the alleged unfair labour practice was
arbitrated before
E T Mhlongo who found that the failure to appoint
the Employee to the post of Deputy Director: Area Co-ordinator
Development and
Care for Kwazulu Natal Region was an unfair labour
practice and directed the Employer to appoint the Employee
retrospectively from
1 December 2010 as Deputy Director: Area
Co-ordinator Development and Care for Kwazulu Natal Region or in an
alternative post.
5.
The appointment was to be made within sixty (60) days of the
Arbitration Award.
6.
The Employer applied for the Reviewing and setting aside of the
Arbitration Award.
COMMON
CAUSE
7.
The Employee applied for the post of Deputy Director: Area
Co-ordinator Development
and Care for KwaZulu Natal Region.
8.
The Employee was shortlisted for the areas in Empangeni and Ngcome.
9.
The Applicant was invited to attend an interview which was held in
Pietermaritzburg
on 23 September 2010.
10.
The Applicant was the recommended candidate for the post in
Empangeni.
11.
The Applicant’s appointment to the post was approved in
principle.
12.
During on or about 30 November 2010, the Applicant was requested to:-
12.1
certify whether he had a criminal record, departmental charge pending
against him or not; and
12.2
complete a criminal clearance form and forward it to the office of
the Regional Commissioner by no later
than 8:00 on 1 November 2010
with the Corporate Services Department alternatively, Human Resource
Manager.
13.
The Employee complied with the requirements timeously.
14.
During on or about 1 February 2011, the Employee sent a memorandum to
the Regional Commissioner:
Kwazulu Natal, wherein he requested to
know the reasons for his not having been appointed to the post.
15.
The Regional Commissioner responded to the Area Commissioner in an
memorandum on or about
9 April 2011.
16.
The Area Commissioner was requested to inform the Employee that:-
16.1
The post to which the Employee was referred was indeed advertised by
the National office with the intention
of the post being financed and
created on the PERSAL system before the appointment process could be
initiated;
16.2
Communications had been forwarded to the office of the CDC Corporate
Services to speed up the finalization
of the creation of the post on
the PERSAL system;
16.3
The office was anticipating the financing and creation of the post on
the PERSAL system;
16.4
The Employee would be advised and provided feedback once the National
Office attended to the process.
17.
It is also common cause that the Employee was not appointed to the
position.
18.
This was the evidence before the Arbitrator.
19.
The Employer’s evidence was that “the Applicant had not
been appointed to the
post because the post was not financed and it
is also not created on the PERSAL system”.
20.
The Employer presented no evidence as to why the post was advertised
and the process followed
as set out above why the post had not been
“financed”.
21.
The Employer presented no evidence as to why the post could not be
“financed”
and or created on the PERSAL system.
22.
The Employer, the Applicant in the Review Application presented
extensive affidavits and
Heads of Argument but no way in the
affidavits or in the Heads of Argument is there any basis for Review
and Set Aside the Bargaining
Council Award.
23.
The Arbitrator found on the common cause of facts that the Employee
had been treated unfairly
and ordered his appointment.
24.
There is nothing whatsoever to suggest that the Award should be
reviewed and set aside.
25.
In the circumstances, the Application for the Review and Setting
aside of the Arbitration
Award is dismissed and it is ordered that
the Applicant, the Employer pays the Third Respondent, the Employee’s
costs of
this Application on a party and party scale.
COSTS
26.
This Court finds no reason why costs should not follow the result in
the matter.
27.
The Applicant has made out no case whatsoever for the review of the
Arbitration Award.
28.
The Review Application had no prospects whatsoever.
ORDER
29.
In the circumstances, the Application for the Review and Setting
aside of the Arbitration
Award is dismissed and it is ordered that
the Applicant, the Employer pays the Third Respondent, the Employee
costs of this Application
on a party and party scale.
_______________________
D
M FARRELL
Acting
Judge
Appearances
:
For
the Applicant :
Adv M MOODLEY
instructed by State Attorney KZN
For
the Respondent :
Adv M NGCOBO instructed by Mdledle Inc
[1]
Act Number 66 of 1995
.