THE LABOUR COURT OF SOUTH AFRICA , CAPE TOWN
In the m atter between:
CHARLES HENRY HENDRICKS
and
COMMISSIONER FOR CONCILIATION ,
MEDIATION AND ARBITRATION
HENDRIK OLIPHANT
NORTHERN CAPE GAMBLING BOARD
G MOTLHABANE
NB SMITH
R eportable
o: C533/2022
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent

2
Heard: 7 Augu st 2025
This judgment w as handed dow n electronically by circulation to the parties' legal
representatives by ema il, publication on the Labour Co urt w ebsite and release to SAFLII.
The date and time for handing dow n judgment is deemed to be 1 0h00 on 11 August 2025.
JUDG M ENT
DE KOCK , AJ
Introduction
[1] This matter came before the court as an application
issued by the second respondent. The applicant aised various grounds of review
alleging that the second responaent committed various irregularities and arrived at
a decision that a reasonable decisioR maker could not reach. The outcome of the
aw ard is that the applicant failed to prove that the third respondent committed an
unfair labour practice.
Background
[2] The applic ed as a messenger/driver w hen he applied for the post
of compliance inspector. The post w as advertised during December 2015, and the
aRplicant w as one of 30 candidates invited for the interview s. The interview s w ere
held on 28 January 2016.
l3] The ·nterview panel consisted of six panelists. The chairperson of the interview
panel recused himself as a panelist w hen it came to the applicant's interview , as
he knew the applicant personally. The panel proceeded w ith the interview w ith only
five panelists. As a direct result of the recusal of the chairperson on the interview
panel, the applicant w as given a score of 1.2 out of the maximum of 25 points of
the sixth panelist w ho recused himself.

3
[4] There w ere two other candidates w ho similarly w ere scored 1.2 out of a possible
25 points, being M Thabe and T Diamond , due to a panelist having to recuse
themselves from their interview s. The applicant, taking into consideration the score
of 1.2 for the panelist w ho recused himself, scored a total of 99 points. The 5
panelists gave scores of 18, 20, 22, 20, and 18. The average score for the five
panelists w as 19.6. Adding the 1.2 from the sixth panelist w ho recused himself, the
average score of six panelists w as 16.5, w hich is substantial!
average score of the 5 panelists that interview ed the applicant.
[5] The third respondent's explanation for the score of 1.2 for the
recused himse lf is that they used the total num ber: of panelists, i.e., six panelists
and divided that num ber w ith the number of pane ists w ho interview ed the
applicant, i.e., five panelists. The total of 1.2 w as then acided as the sixth score.
The same allocation of points w as applied to Thabe an(j Diamond .
[6] Six candidates w ere recommended for appoir:itments, and five w ere appointed. Of
the six recomme nded, two candidates received a total score of 104, and one of
these candidates w as then appointee w ith the other four candidates w ho scored
more than 104 points. Not one of he six recommended candidates had a pane list
recusing them from the interview s, and their scores w ere based on the scores of
six panelists. Tlie six ecoro.rnended candidates, based on scores by six panelists,
, 17, 20, 22, 25, and 21 w ith a total score of 119
I Tongw ane - 21 , 22, 22, 17, 15, and 13 w ith a total score of 110
S Barnado Smith -14, 20, 18, 19, 19, and 17 w ith a total score of 107
L Se lomi - 17, 21 , 17, 17, 15, and 17 w ith a total score of 104
B Moses-18 , 14, 18, 17, 20, and 17 w ith a total score of 104

4
[7] The scores allocated to candidates w ho w ere not recommended for appointments
ranged from 33 to 100 points. Amongs t these remaining candidates, everyone w as
allocated scores by six panelists, save for the applicant and Thabe and Diamond
w ho w ere allocated 1.2 points due to the recusal of a panelist during their
interview s.
[8] After conclusion of the interview s, a memorand um dated 28 Jan1;1aey 2016 w as
drafted to obtain approval to fill the five compliance inspector posts. O lil 29 January
2016, five of the recommended candidates w ere approved for appointed. The
appointments w ere made during February 2016 on salary notch
applicant w as not one of the recommended candidates.
[9] The applicant, being unhappy w ith the 1.2 points allocated to him due to the recusal
of one of the panelists, ultimately referrea an un ai labour practice dispute to the
CCMA. It is unfortunate that quite a lengthy delay w as occasioned due to a CCMA
commissioner refusing to grant condonation, w 1ch w as ultimately review ed and
set aside by the Labour Co urt 1 he dispute w as referred back to the CCMA w here
con donation w as granted, and the clispute w as arbitrated by the second
respondent.
Arbitration aw ard
e whether it was fair to allocate a score of 1.2 to Hend ricks,
allow five pane lists to score him , allow other applicants' scoring by six
pane1ists and if He ndricks was prejudiced.'
(11] The second respondent, after summarising the parties' respective evidence, states
that the applicant conceded that he did not have the required national diploma,
w hich w as a requirement for the position, and that he did not mee t the
requirements. The second respondent finds that the applicant should never have
been shortlisted. He also finds that the applicant w as evasive on most questions

5
so much so that it made him an unreliable w itness. The applicant also conceded
that the score w as a guideline and not a final binding decision.
[12] The second respondent further found that the applicant w as disadvantaged by the
successful candidates' qualifications and experience, and that a score higher than
1.2 w as the applicant's ow n expectation. The score of 1.2 w as unfair to all of them
and the recusal w as not done in bad faith. This show s that the 1.2 w as a criteria
decided by the Board. Although it w as low , it w as not proven that i w as necessarily
unreasonable. It w as consistently applied to three candidates w here a recusal
happened. The second respondent concludes that clearly the recasal Y.f?S not mala
tide and finds that the 1.2 scoring w as not allocated in bad aith.
[13] The second respondent finds that the 1.2 scoring is an employer prerogative that
he cannot easily interfere w ith and, even it it seems nreasonable, it w as not unfair.
The second respondent refers to the two recommended candidates w ho both
scored the same points, w hich according to bim show s that the score alone w as
not the determining factor; it w as Just a guide. On this basis alone, the applicant
should fail. The fact that the applicant as only scored by five panelists w as not
unfair. The applicant w as clearly not qualified and not the best person for the
position. The applicaRt w as not prejudiced.
[14] The secon es that the third respondent did not act arbitrary,
capricious or u fair. Tt;le criteria w ere consistently applied and not in bad faith.
The applican did not meet the job requirements and did not show that the
respondent hatl comm itted an unfair labour practice.
[15] The applicant takes issue w ith the second respondent's finding that he cannot
interfere w ith the third respondent's decision, even though he men tions in his
aw ard that there w ere different standards applied to those candidates appointed

aw ard that there w ere different standards applied to those candidates appointed
and the applicant and that, in terms of scoring, it seems unreasonable. The second
respondent's error is compounded w hen he accepts the evidence that it w as not

6
unfair, as the same score w as given to three other candidates. How ever, these
other candidates w ere also not recommended for appointments.
[16] The applicant submits that the second respondent should have w eighed the
different standards applied to him against the standard applied to 27 other
candidates w ho received scores from six panelists. The applicant w as scored by
only five panelists and an average score of 1.2 points w ere allocated
the recusal of the sixth panelist.
[17] The applicant states that a fairer calculation, under these circumstances, w ould
have been adding the score of the five panelists and dividing the total scores by
six, w hich w ould have given him an average t r to have each
candidate scored by only five panelists.
[18] The applicant also takes issue w ith tHe n ent giving too m uch
[19]
consideration to the third respondent's w itness w hose evidence extensively covers
the issue that he should not have been shortlisted. This m ight be the opinion of
human resources. How ever, the Board as the employer determines the
requirements for a post and approved w hich candidate is to be invited to an
interview . The shortlisting sho\ld not have been an issue w hich the second
respondent had:1:6:tlecide, as tHe issue he w as required to determine is w hether
the scoring of 1.2 points amounted to unfair conduct. The second respondent
therefore clearl committed an irregularity, as he w as not requested to consider
w heth~ he aR~licant should have been interview ed or not.
:The second respondent also comm itted an irregularity by simp ly accepting the
evidenc~ the third respondent's only w itness, w ho w ere not even a member of
the panel. She w as therefore not able to testify to the follow ing issues:
a. Why the panel decided to use the method they did in calculating an average
score in the absence of the sixth panelist.

7
b. What other factors, if any, w ere used to determine the applicant's suitability
for the post, as the factors for w hich the applicant and others w ere scored
w ere contained in each panelist's scoring sheets.
[20] The applicant states that the second respondent failed to consider the scoring
sheets of each panelist w herein they scored the applicant as follow s:
a. Forma l and operational know ledge: two scored the applicant av.erage, two
scored him good or above average, and one scored h'm as excellent or
outstanding.
b. Skills/expertise: two scored the applicant average and three scored the
applicant good or above average.
c. Experience/exposure: all panelis s sec icant good or above
average.
d. Aptitude/attitude/behaviour: three scored the applicant as good or above
average and two scoring the_::a_P- licant at excellent or outstanding.
[21] If one looks at these scores of the panelists that interview ed the applicant, there is
clearly an indicati0n in terms of their scoring that the applicant should have been
considered ndidate. The applicant also compares his scoring to that
of Bernar:do-Smith and Moses , w ho w ere appointed, and submits that he w as a
more suita le candidate and should have been recommended for appointment into
[22] T.he applicant concludes that the second respondent's decision is one w hich does
no fall w ithin the range a reasonable decision-maker could have made and
therefore that the arbitration aw ard is review able and should be set aside.
Rev iew Test

8
[23] In Sidumo & another v Rustenburg Platinum Mines Ltd & others, 1 the Court held
that "the reasonableness standard should now suffuse section 145 of the LRA ",
and that the threshold test for the reasonableness of an award was: " ... Is the
decision reached by the commissioner one that a reasonable decision maker could
not reach? .. .'12. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as
Amicus Curiae)3 the Court applied this reasonableness consideration as follows:
' ... A result will only be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material that was before the aroitrator. Material errors of fact,
as well as the weight and relevance to be attachecf to the R_artioular facts, are not
in and of themselves sufficient for an award t0 be set aside, but are only of any
consequence if their effect is to ren asonable. •
[24] This test has thus been applied as a review enquiry. Firstly, the review
applicant must establish that there exists a failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly,
if this failure or error is SQ_ own to exist, tl'.le review applicant must then further show
that the outcome arrived at by the arbitrator was unreasonable. If the outcome
arrived at is nonetheless reasonable, despite the error or failure, that is equally the
end of the review application. In short, in order for the review to succeed, the error
or fail reasonableness of the outcome to the extent of rendering
[25] Further, the reasonableness consideration envisages a determination, based on
all ttie evidence and issues before the arbitrator, as to whether the outcome of the
a bitrator arrived at can nonetheless be sustained as a reasonable outcome, even
if i may be for different reasons or on different grounds.4 This necessitates a
consideration by the review court of the entire record of the proceedings before the

consideration by the review court of the entire record of the proceedings before the
arbitrator, as well as the issues raised by the parties before the arbitrator, with the
view to establish whether this material can, or cannot, sustain the outcome arrived
1 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC ).
2 Id at para 110.
3 (2013) 34 ILJ 2795 (SCA); (2013] 11 BLLR 107 4 (SCA ) at para 25.
4 Fidelity at para 102.

9
at by the arbitrator. In the end, it w ould only be if the outcome arrived by the
arbitrator cannot be sustained on any grounds, based on the material, and the
irregularity, failure or error concerned is the only basis to sustain the outcome the
arbitrator arrived at, then the review application w ould succeed.5
[26] The court w ill now proceed to consider the review application 6y the applicant
against the above principles and the test applicable to review applications.__
Evaluation of grounds of review
[27] It is appropriate to start the evaluation of the gro
legal position w hen it comes to unfair labour practice disputes w ith emphasis on
promotion disputes. The unfair labour ract1ce doctr:ine is intended to protect
against irrational, ma/a tide, and arbitraliY decisiolil-making by an employer, and
any decision by an employer must be eva uated on that basis. This is evidence
from the follow ing dictum of S eyi~a J in Chirwa v Transnet Ltd and Others6:
"The dual fairness requirement is one example; a dismissal needs to be
substantively and procedurally fair. By doing so, The LRA guarantees that
an employe will be w.otected by the rules of natural justice and that the
proce'dural fairness requirements will satisfy the audi alteram partem
pri ciple and the rule against bias. If the process does not, the employee
will e able to challenge his or her dismissal and will be able to do so under
pro isions and structures of the LRA. Similarly. an employee is
protected from arbitrary and irrational decisions. through substantive
fairness requirements and a right not to be subiected to unfair labour
practices". (emphasis added)
[28] An employee can only succeed in having the exercise of a discretion of an
employer interfered w ith if it is demonstrated that the discretion w as exercised
5 See Campbe ll Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC ); [2016) 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone M ine) v De Beer & others (2015) 36 ILJ

1453 (LAC); [2015) 4 BLLR 394 (LAC ) at para 12.
6 (2008) 29 ILJ 73 (CC ) at para 42

10
capriciously7, or for insubstantial reasons, or based upon any w rong principle or in
a biased manner (see Rex v Zackey 1945 AD 505 at 513; Madnitsky v Rosenberg
1949 (2) SA 392 (A) at 398; Ex parte Neethling & others 1951 (4) SA 331 (A) at
335D; Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 781J
and 783C ; Shepstone H & Wylie & otherv Geyser NO 1998 (3) SA 1036 (SCA ~ at
1045A).8
[29] The Industrial Court in Goliath v Medscheme (Pty) Ltd9 held:
"Inevitably, in evaluating various potential candidates foui certain position,
the management of an organisation mu exercise discretion and form an
impression of those candidate . Unavoidably_, this process is not a
mechanical or a mathematical one where a given result automatically and
objectively flows from the available pieces--of information. It is quite possible
that the assessment made of the candidates and the resultant appointments
will not always be the correc one. However, in the absence of gross
unreasonableness which leads to the Court to draw an inference of ma/a
tides, this Court should be hesitant to interference with the exercise of
[30] In other" a nutshell for this court to interfere w ith the second
respondent's ttecision, this court must find that the outcome arrived at by the
second respo dent is one that a reasonable decision-maker could not reach. If this
is found t~ be the case, the court must determine w hether the third respondent's
decision not to recommend and appoint the applicant w as arbitrary, capricious,
ma/a tides, or grossly unreasonable in relation to the scoring allocated to the
applicant.
7 Ncane v Lyster NO and others (DA27 /15) (2017] ZALAC 1; (2017) 38 ILJ 907 (LAC ); (2017] 4 BLLR 350
(LAC) (10 January 2017) at para 25
8 Also see M inister of Home Affairs v Gene ral Pub lic Service Sectoral Ba rgaining Council and others
(JR1128 /07) (2008] ZALCJHB 23 (26 March 2008); Na inaar v Department of Wo rks, KZN and others

(D839 /05) (2015] ZALCD 26 (19 May 2015); South African Po lice Services ("SAPS 'J v Gebashe and
others (D676 /11) (2014] ZALCD 68; (2015) 36 ILJ 1620 (LC) (24 November 2014).
9 [1996] 17 ILJ 760 (IC)

11
[31] The first ground of review to be considered by this court is whether the second
respondent's findings that the applicant should not have been shortlisted, based
on the evidence before him, amounted to a decision that a reasonable decision­
maker could not reach. Or put differently, did the second respondent misconstrue
the nature of the enquiry by delving into questions w hether the applicant should
have been shortlisted and w hether the applicant complied w ith the requirements
for the post as advertised.
[32] The evidence before the second respondent was that the initial shortlisting, done
by human resources and which excluded the applicant, was rejected by the Board.
A further shortlisting process was done, and t as shortlisted in this
second process. It is therefore not for human resources to decide and present
evidence that the applicant ought to have been shortlisted, nor was it reasonable
for the second respondent to accept the evidemce and to conclude that the
applicant should not have been shortlisted. :rne Board was satisfied that the
applicant possessed the nece?sa'ry skills and experience and that he should be
shortlisted. The second respondent's conclusion therefore in this regard was not
only unreasonable but irregular a d extremely prejudicial to the applicant. As can
be seen from the second respo dent's award, this was a crucial consideration in
his outcome that the aP.plicant failed to prove that the third respondent comm itted
an unfair labour practice. But for this incorrect, irregular and unreasonable
concl sion, the seco d respondent wo uld have been hard pressed to arrive at the
same conclusioy that he did especially whe n the second respondent found that
Gs ing the 1.2/'scoring may seem unreasonable but was not unfair since the
)}plicant should not have been shortlisted.
[33] In this regard the LAC in Head of the Department of Education v Mofokeng and
others10 stated as follows:

others10 stated as follows:
"Irregularities or errors in relation to the facts or issues, therefore, may or
may not produce an unreasonable outcome or provide a compelling
10 [2015] 1 BLLR 50 (LAC) at para 33

12
indication that the arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality of the error or irregularity and its relation to
the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not have
had upon the arbitrator's conception of the inquiry, the delimitation of the
issues to be determined and the ultimate outcome. If but for an error or
irregularity a different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute. A material error of-this order
would point to at least a prima facie unreasonable r:esult. The reviewing
judge must then have regard to the general nature of the aecision in issue;
the range of relevant factors informing toe ecisi n; tne nature of the
competing interests impacted upon by the decisio ; and then ask whether
a reasonable equilibrium has been struck i accortlance with the objects of
the LRA. Provided the right qJestion was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By the
same token, an irregufafity, or error material to the determination of the
dispute may constitute a 7 sconception of the nature of the enquiry so as
to lead to no fair trial of the issues, with the result that the award may be set
aside on that g ound alone. The arbitrator however must be shown to have
diverted from the correct path in the conduct of the arbitration and as a result
failed to address the question raised for determination."
[34] The s correctly summarised the issue that he was required to
decide, ¥et he continued down the wrong path to determine the issue he himself
iden~ he issue, correctly identified but strayed from, was whether it was fair
to allocate a score of 1.2 points to the applicant for the sixth panelist w ho recused
himself, and w hether the applicant was prejudiced.

himself, and w hether the applicant was prejudiced.
[35] This court finds the so-called criteria used by the third respondent to be grossly
unreasonable to say the least. What is even more m ind-boggling to this court is
that the third respondent continues to defend the use of the 1.2 scoring as a
criteria, which was fairly applied to all candidates. Any reasonable person must

13
conclude that the 1.2 scoring w as not applied to all candidates, and that the use of
the 1.2 scoring directly prejudiced three of the 30 candidates. The remaining 27
candidates w ere all scored by six panelists, and all six scores w ere added to arrive
at a total score. In the case of the three candidates, w hich include the applicant,
the scores of five panelists w ere used, and then added to that w as 1.2 RO ints for
the sixth score to make up for the panelists w ho recused themselves./
[36] The second respondent's acceptance that the recusal w as not done in bad faith Is
irrelevant. The recusals w ere clearly necessary, as the panelists knew the three
candidates in question. The question surely cannot be w hether. their recusal w as
in bad faith. The question must be how one ensures a fair interview process for the
three candidates in question given the recusal of a panelist. T-he three candidates
cannot be penalised or prejudiced becaus t decided to recuse
themselves, yet this is exactly w hat happened w hen---tl1ey w ere given a score of 1.2
points out of a possible 25 points for the sixth panelist w ho recused themselves.
[37] A demonstration of this severe P.rejudice and gross unfairness is necessary.
Bod igelo obtained the highest total sco--& of 119 points, made up of 6 individual
scores of each panelist between 14 and 25 points. The applicant obtained a score
of 99 points, made up of 5 individual scores of the five panelists, and then added
to that 1.2 points for-the recysed panelist. The applicant's low est score amongst
the fiv points, and the highest w ere 22 points. But, because
one panelist recased himself, he w as severely prejudiced by being given an
illogical and baseless score of 1.2 points. The unfairness, irrationality and
caRriciousness of this scoring is clear to any reasonable person applying fair labour
practices, yet the third respondent continues to defend same.
[38] There w ere other alternatives available, w hich the third respondent w as aw are of

[38] There w ere other alternatives available, w hich the third respondent w as aw are of
but failed to apply. One such alternative w as to calculate the average of the scores
by the five panelists, and then to add the average score as the sixth score. If this
had been done, the average score of the five panelists w ould have been a score
of 20 points. If one then adds to the five scores 20 points, rather than the absurd

14
scoring of 1.2 points, the applicant w ould have had a total score of 118 points,
w hich w ould have placed him as the second-best candidate based on scores w ith
Bod igelo on 119 points.
[39] Alternatively, the third respondent could have used the low est score given to the
applicant by the five panelists, w hich w ere 18 points. If this then w as to be added
to the total score of 98 points of the five panelists, the applicant's~ score w ould
have been 116 points. This still places the applicant as the second-best candidate,
w ith the third-best candidate having scored 114 points, the fourth-best candidate
w ith 110 points, and the fifth-best candidate w ith 107 points. The candidates w ith
scores of 104 points w ould not even have come into the equation l?lad the applicant
been given a fair score due to the sixth panelis se Imself. This being
the case, and only based on scori ought to have been
recommended for appointment.
[40] The court did take note of the unfairness tow ar .s the other two candidates w ho
w ere given a score of 1.2 points. liven if they received a fair score due to the
recusal of the sixth panelist, ey w o1;1Ia ot have received a score more than the
applicant. On the scoring alone, they w ere not prejudiced insofar as an unfair and
baseless score of & points w ere allocated to them for the sixth panelist versus
the prejudice suffered by t.be applicant. They in any event did not challenge the
unfairness of their scoring, and their scoring w as not subject to the arbitration
proce f comp leteness, Thabe's score by five panelists, plus the
1.2 po points and Diamon's score by five panelists, plus the 1.2 points,
w as 91 points. These scores, if applied fairly, w ould still have been substantially
low er than the score of the applicant of 99 points based on the 1.2 points allocated
for the sixth panelist. In the case of D iamond , if the low est of her five scores w ere
used, she w ould have been given a total of 102 points, w hich w ould have placed

used, she w ould have been given a total of 102 points, w hich w ould have placed
her below the two scores of 104 points. If the average of the five scores w ere used,
she w ould have been given 108 points, w hich w ould have placed her above
Barnado-Smith, w ho received 107 points. Be that as it may , the second respondent

15
w as required to determine w hether the score of 1.2 points given to the applicant
w as fair and w hether the applicant w as prejudiced as a result.
[41] Ha ving found that the applicant w as severely prejudiced by the score of 1 .2 points,
the next issue to be determined is w hether the scoring w as used to determine the
recommended candidates, or w hether the scoring w as merely a guideline in the
final decision taken. The difficulty for the third respondent is that not one panelist
w as called as a w itness to explain their reasoning for not recom ending the
applicant for appointment. The third respondent's w itness w as not a panelist, and
she could not reasonably explain w hether the illogical scoring a the applicant led
to his dow nfall in the panel's ultimate recommendations. The cou noted the third
respondent's version that she w as part of the panel, as her name appears on the
memorandum. Ho w ever, the evidence clearly stiow s that she w as not one of the
six panelists w ho scored the candidates and, as such, Iler evidence could not have
been presented as one of the panelists.
[42] One simply mus t look at the sc0ring of the 30 candidates to see that scoring proved
to be decisive in the recommendations. Ihe six recommended candidates scored
the highest points, i.e., between 104 and 119 points. The remaining unsuccessful
candidates received scores of 100 points and less. This is a clear indication that
scoring w as he recommendations.
[43] Insofar s the two recommended candidates w ho both received scores of 104
points, w hich w ere the low est scores for the recommended candidates, one of
hem w ho scored 104 points w ere not appointed. This again show s that scoring
w as decisive in the appointments, as the candidate w ho fell out had the same
score as the fifth-best candidate w ho w as appointed. The third respondent, based
on the scores, therefore chose between two recommended candidates w ith the
same total score of 104 points, w hich w as the low est score for all the

same total score of 104 points, w hich w as the low est score for all the
recommended candidates. This does not show that scoring w as not used, as found
by the second respondent. It in fact show s that the candidates appointed w ere
appointed based on the scoring allocated to candidates during the interview s.

16
[44] The fact that scoring w as used is also supported by the memorandum dated 28
January 2016. It is stated in the memorandum that 30 candidates w ere shortlisted
using the key areas of responsibility as reflected in the advertisemen t as guiding
criteria. It states further that appropriate and relevant qualifications (training) and
experience served as additional shortlisting standards. The court mus t note that
this memorandum clearly contradicts the second respondent's finding that the
applicants should not even have been shortlisted.
[45] The memorand um states further that the panel members in their final selection
made use of a rating scale in the assessment of each candidat 's level of
compe tence based on formal know ledge, operationa~ ow ledge, skills/expertise
and experience/exposure. The scoring done o the aforementioned basis w as
used as a guide in reaching a final decision T e memorand um then goes on to
state the scoring given to each candidate, w hich inclu<;tes the 1.2 points given to
the applicant and two other candidates.
[46] Follow ing the scores, the memoramd um gives a summary of all candidates and a
conclusion w hether the candidates w e[e recommended for the post. In respect of
the applicant, it is stated inter ali that the applicant has fair know ledge of the key
responsibilities required by the post but had trouble in expressing himself
particularly a out the legislation and the internal control standard process. No
evidence w as presented during the arbitration proceedings to corroborate and
support this findiQg, and the third respondent's w itness, w ho w as not a panel
member , could not present any evidence other than noting w hat is stated on the
[4 7] How ever, this summat ion of the applicant's interview appears to be at odds or
contradictory to the individual scoring sheets applicable to the applicant. One
panelist scored the applicant as average on two criteria, and as good or above

panelist scored the applicant as average on two criteria, and as good or above
average on three criteria. It is also stated that the applicant has know ledge of the
industry and has experience and skill. The second panelist scored the applicant
good or above average on all five criteria and concludes that the applicant is

17
recommended. The third panelist scored the applicant good or above average on
all five criteria and concludes by stating that the applicant is an internal candidate,
can be trained, and have a good understanding of gamb ling. The fourth panelist
scored the applicant as average on three criteria, as good or above average on
two criteria, and as excellent or outstanding on one criteria. The fifth panelist
scored the applicant as good or above average on three criteria, and as excellent
or outstanding on two criteria.
[48] It is clear to this court that the applicant w as severely prejudiced by the illogical,
baseless and unfair scoring of 1.2 points allocated to the sixth panelist. But for this
illogical and unfair scoring, the applicant w ould have been the second-best
candidate by far, and only slightly below the best recommeRded and appointed
candidate. In the absence of evidence by any one of the panelists to explain how
the scoring affected the applicant's chances to be recommended , and appointed,
this court finds that the applicant, being tfle secor:id-best candidate on the scoring
used, ought to have been recom rended and appointed as a compliance inspector.
The third respondent's failure to recommend and appoint the applicant w as based
on making use of a scoring that w as arbitrary, illogical, baseless and grossly unfair.
[49] The second respondent's finding that the applicant failed to prove that the third
responden n air labour practice w as based on conclusions that he
w as n berty to ma ke and w as a decision that a reasonable
[50] 1he court-must conclude by addressing the second respondent's finding that the
pplica t w as evasive on mos t questions so m uch so that it made him an unreliable
w itness. The court read the transcribed record, and the second respondent's
finding is not supported by the record at all. The applicant's evidence w as alw ays
clear and to the point and every time the applicant raised important issues during

clear and to the point and every time the applicant raised important issues during
his cross-examination, he w as met w ith a response by the cross-examiner that "w e
are not there yet". There is therefore no justification or no basis on w hich the

Costs
18
applicant could have been referred to or have been found to as an unreliable
w itness.
[51] In terms of the provisions of section 162(1) of the LRA , this court has w ide
discretion w hen it comes to the issue of costs. The court is mindful of the dictum
of the Constitutional Court in Zungu v Premier of the Province of Kwa-Zu/u Natal
and Others11 w hen it comes to the issue of costs in employment disputes. In the
matter before this court and considering the gross unfaim ss of the third
respondent's actions in allocating the 1.2 p • n as simply no
reasonable or justifiable basis for such allocatic>n and w hi&h caused the applicant
severe prejudice, it w ill be fair that the th1re resP,ond_;9t be ordered to pay the
applicant's legal costs. The applicant w as required to obtain the assistance of an
attorney and an advocate to represent hi view application to enforce his
right not to be unfairly treated.
[52] The third respondent and their representative from the state attorney's office also
show ed unacceptable behaviour when they failed to arrive at court w hen the
application w as atgued. In fact, the third respondent did not even deliver heads of
argument, as they w ere required to do in terms of the rules of this court. The court
w as fu stand the matter dow n, as the state attorney w as flying
dow n applicant's attorney. Despite the court standing the matter
dow n for at least an hour, the state attorney never arrived at court. No explanation
w as presente for the failure to attend. It w ill therefore be appropriate for this court
to show its displeasure w ith this conduct, to aw ard costs on an attorney-and-ow n­
client scale, w hich includes the costs of counsel.
[53] In the premises, the follow ing order is made:
11 (2018) 39 ILJ 523 (C C).

Order
19
1. The application for the arbitration aw ard to be review ed and set aside is
granted. The aw ard is replaced w ith the follow ing order:
1.1. The third respondent comm itted an unfair labour practice in not
recommend ing and appointing the applicant in one of the five posts
1.2.
of compliance inspectors.
The third respondent is ordered to promot~ e ap~ cant to the
position of compliance inspector w ith effect frorri\'. 5 February 2016
on the salary notch of R257 405.00 ~er annum .
1.3. The parties are directed to calculate the difference between w hat the
applicant earned in February2016, w hic w as an annual salary of
R105 000.00, to date of this aw ard versus the amount he w ould have
earned during this period had he been appointed in February 2016,
taking into consideration any annual increases and changes in the
salary of compli nce1nspectors. If the parties can reach agreement
on the amount ot backpay, the third respondent is ordered to pay the
agreed amount w ithin 21 days of reaching an agreement. How ever,
s are unable to reach an agreement w ithin 30 days from
this judgment, either party may approach the court for a
decision as to the amount of backpay that is due and payable to the
ap licant, and the date of payment.
The third respondent is ordered to pay the applicant's costs in this
review application on attorney-and-ow n-client scale, including the
costs of counsel.

20
Acting Judge of the Labour Court o
Appearances:
For the App licant: F Rodriques
Instructed by: Steenkamp Abrahams Inc.
For the Third Respondent: