THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JR1854/22
In the matter between:
KHULISO HILLARY MBULALENI Applicant
and
SASOL CHEMICAL OPERATIONS (PTY) LTD
SECUNDA First Respondent
KENEILWE MOLWELANG Second Respondent
NATIONAL BARGAINING COUNCIL FOR THE
CHEMICAL INDUSTRY Third Respondent
Heard: 26 June 2025
Delivered: 20 October 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date for handing down judgment is deemed to be
20 October 2025.
JUDGMENT
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RAMALATSO, AJ
Introduction
[1] This is an application in terms of section 158(1) (g) of the Labour Relations Act 1
(LRA) to review and set aside an arbitration award. The test applicable in this
review application is that of correctness – whether the commissioner’s ruling i s
right or wrong, and therefore th e ruling is reviewable on objectively justifiable
grounds.2
[2] The First Respondent raised the issue of an incomplete record; however, it
insisted that the matter proceed as the missing record does not prevent the court
from making a proper determination. In his argument , it was also raised that the
evidence of Mr Johan DJ van Rooyen (Vlam) was missing. The evidence of Mr
van Rooyen is captured by the Second Respondent , although it is handwritten
notes, which are easy to read and follow. I, therefore, was satisfied that the Court
was presented with a full record to decide and finalise the review application
before me.
Background
[3] The facts leading to the arbitration award are common cause.
[4] The Applicant previously declared a dispute and referred it to the National
Bargaining Council for the Chemical industry (NBCC). That dispute was in terms
of section 186(2) (a) of the LRA, and was referred to the NBCC on 16 September
2022.
[5] Subsequent to an unsuccessful conciliation, the Applicant referred the dispute for
arbitration at the NBCC under the case number CHEM6 -20/21. In terms of the
1 Act 66 of 1995, as amended.
2 See: SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218 (LAC) at
paras 39 – 41; Zeuna-Stärker BOP (Pty) Ltd v N ational Union of Metalworkers of SA (1999) 20 ILJ 108
(LAC) at para 6; De Milander v Member of the Executive Council for the Department of Finance: Eastern
Cape & others (2013) 34 ILJ 1427 (LAC) at para 2; South African Municipal Workers Union obo Manentza
v Ngwathe Local Municipality and Others [2015] 9 BLLR 894 (LAC) at para 20; Ukweza Holdings (Pty) Ltd
v Nyondo NO & others (2020) 41 ILJ 1354 (LAC) at para 12.
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referral to the NBCC, the Applicant challenged the withdrawal of his job offer. His
challenge was whether there was an appointment ; if there was no appointment,
then whether the decision not to appoint was unfair.
[6] The Second Respondent, on 15 July 2022, issued an award, ruling that the
Applicant failed to establish an unfair Labour practice and dismissed the
application.
[7] The Applicant then referred the matter to the above court under case number
JR1845/22, for the review and setting aside of the arbitration award issued by the
Second Respondent, and for the remitting of the matter to the Third Respondent
for arbitration afresh before a commissioner other than the Second Respondent .
Alternatively, the Applicant pleaded for the r eview and setting aside of the
arbitration award of the Second Respondent and for the substitution of the award
with an order that there was indeed an unfair labour practice and ordering the
First Respondent to appoint the Applicant to the position. Finally, the Applicant
pleaded for the grant of any such further and alternative relief as the above
Honourable Court deems appropriate.
Applicant’s evidence at arbitration
[8] At the proceedings before the NBCC, the A pplicant contended that he was
employed by the First Respondent since 1 June 2013 and is currently in a
position as a Process Controller Grade 01 (PC-G01) at Sasol Synfuels
Operations. That the First Respondent advertised a promotional post of Process
Artisan Grade Two at SCO (Secunda Chemical Operations) Logistics. The advert
was in June 2019, and he filed his application on 16 June 2019. He could not
remember if the advert was for both internal and external applicants, but he
applied internally.
[9] On 4 November 2019, he was called to attend the interview on 7 November
2019, which he did. The panellist s were Ms Thobekile Chonco (HRC), Mr Jaco
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Venter (Manager of the vacant position), another manager whose name he could
recall, and a union official.
[10] On 13 November 2019, Ms Chonco called him to confirm that he was successful
in his application, and he was asked if he was going to accept the offer at the
proposed salary for the post.
[11] Further, the Applicant was asked to submit his NQF qualifications, which he did,
and Ms Chonco then informed him that she w ould let him know as soon as the
manager comes back from leave. The Applicant then responded that he is ready
to move.
[12] On 15 November 2019, the Applicant was told by Ms Charlotte Nell that he could
not move anymore because there were issues with his movement , but she would
find out the reason. Later , he received a call from Ms Melinda Beelder , the
Human Resource Business Partner, who informed him that SCO was wrong in
appointing him. She then called a meeting to address the issue.
[13] Present at this meeting was himself, Ms Melinda Beelders from Synfuels , who is
a senior to Charlotte Nell, Nkosi Chon co (HRBP) from Secunda Chemical
Operations, who is the senior to Thobekile from HRC. The meeting, however, did
not yield his desired results.
[14] Further, during his testimony , the Applicant referred the arbitrat or to the Third
Respondent’s recruitment policy, which reads ‘ Once the vetting process is
completed successfully, a salary offer is prepared according to the remuneration
policy, by the remuneration specialist. The vacancy manager approves the offer
and the salary offer may then be extended to the candidate ’. It is important to
note that although the Applicant referred to the above subparagraph of the policy,
the entire paragraph which deals with appointment , together with the other
subparagraph/s of the relevant part of the policy, will be referred to later.
[15] It was the Applicant’s evidence t hat his offer was made via email, and that he
does not know if , in other cases, offers were made via e mail and that it was the
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first time that he was given an offer via email. The Applicant further referred to
the requirements of the advertisement for the post , and his testimony read as
follows:
‘There are questions there that I am of the view are in line with the requirements
of the job advertised. That was the online application, my first online application
for the job. Number one then says, do you have Grade 12 or 13 with Math’s ,
Science and English?, those are the questions for the application online. Job
requirements, qualifications and expertise required, two to five years’ experience,
Grade 12 or N3 with Math’s and Science, NQF level 4 Chemical Operations,
Process Artisan, which is equal to NQF level four Chemical Operations. Further
that only candidates that are already process Controller Grade ones will be
considered, and then, specific experience required. It says, experience in a
production environment, experience in the ability as a Process Controller on Top
and bottom road loading, preferably road tanker loading facility experience, in
working on the plant panel control room will be an advantage. And then on page
10 of the applicant bundle, I would read the question, the first question for that
application was, Do you have Grade 12 or N3 with Math’s and Science and
English? Of which my response to that, to that question was, yes. The next
question on the advert was, do you have NQF level four Chemical Operations
Occupational CHIETA , the answer to that was yes, the third question was are
you a Process Artisan or NQF level 4 Chemical Operations, the answer was no,
the next question was do you have any experience and ability as a Process
Controller on both and bottom road loading operations, preferably road tanker
loading facility, the answer to that was no, the next question was do you have
experience in the production environment, the answer was yes, the last question
was are you an unpleased GT employee, the answer was no.’
was are you an unpleased GT employee, the answer was no.’
[16] The Applicant, in his testimony , also referred to subparagraph 8. 4.1 of the
Human Resources Policy: Recruitment of the bundle, which reads : ‘the Talent
Acquisition consultant and/ or human resource consultant representative screens
applications by reviewing the candidate profile or CV against minimum
requirements stipulated in the advertisement’. Further to para 8.5.1, which reads,
‘Candidates will only be invited for an interview if they meet the inherent
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minimum requirements in terms of qualifications and experience will not be
placed’.
[17] The Applicant referred the commissioner to para 8- C1 of a document entitled
‘Sasol Procedure: Career development of artisans 23/08/2011’ as contained in
the bundle, which reads:
‘Sasol Level 8-C1, Job Title(Chemical operations Artisan-Grade 2), Min
Qualifications and Experience (NQF 4, (Mandatory), High Level Competency
indicators (Single Chemical operations understanding and Operation, Asset mgt:
understand Chemical operations failure modest and defect identification,
Conduct Proactive(advanced) fault finding, Operate within designed parameters.
Assessment Criteria (Plant reliability, Chemical operations incidents, and
Chemical operations performance targets. Shift Handover Chemical operations
(Feedback from foreman/PA/SPA). Preparations of equipment/system for
maintenance. Number of repeat incidents (Feedback from foreman/PA/SPA -
Shirt Handover Chemical operations.) Number of alarms, trips on plant. Product
quality and quality (Feedback from foreman/Alarm Management system.).’
[18] The Applicant, during cross-examination, said the following: that he is not a
process artisan Grade 2 at his current post ; that he does qualify for promotion,
but because of the plant -specific, he is not ; and that in his current position, he
could not, in the eight years at work , progress to Grade 2, which he conceded.
The Applicant was further made to read from a document entitled ‘ Process
Artisan appointment process, standard and practices (SA Region preliminary
investigation-2nd round integration slide pack) ’, dated 05 th April 2017, which
reads:
‘Process Artisan- operates process equipment, systems and processes for a
specific plant/unit within the Sasol environment to achieve production
requirements in a safe manner. This position is required to operate the plant
processes from a control panel (e.g. operate a single process -multiple systems
and operate within design parameters using DCS).’
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[19] That, in his eight years’ experience, he could not progress to Grade 2. The
response from the First Respondent was that ‘the cognition ability of the
individual also plays a vital role to become a progr ess artisan grade two. In many
cases, individuals only reach the PC one position and don’t progress further in
the career path’.
[20] The applicant was further told on cross -examination that he does not have the
necessary experience for the post he applied for , and he agreed with the
question. He further agreed on cross -examination that his appointment was
rejected because of his lack of plant-specific experience. It was his argument that
the First Respondent was wrong in not appointing him.
[21] He was then made to read his email sent to Tumi Matsheka, which reads as
follows;
‘I would seek your intervention on the below matter as an HR Ethics officer
I am currently appointed as Process Control ler Grade 1 in the Synfuels Gas
Circuit( Turnaround) environment. A position was advertised for a Process
Artisan grade 2 position by Secunda Chemical Operations (SCO), specifically for
Road Loading site and Logistics. I applied for the position on the 16 th June 2019.
I received an invitation for the interview scheduled for the 07th November 2019, of
which I then informed my line manager. On the 13 th November 2019 I received a
call from SCO to notify me that I was successful. A offer was communicated to
me as per my request after the phone call (Please see attached). My HRC and
Area Manager were informed and asked when permission could be granted for
me to make the move. They resolved that I could not move vertically for a
promotion on another plant, but only laterally for the same position. I then
requested a meeting with my Area Manager, he advised he can let me move, but
only for the same position, but not for a promotion. I then did further liason with
my HRC and only received the same outcome. I apparently according to the
my HRC and only received the same outcome. I apparently according to the
MSP procedure not allowed to move to another plant on the basis of a
promotion(vertical), but can only do a transfer(lateral move)according to HR. I
have to this point explored different avenues including talking to both HRBP’S
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that are senior to the HRC’s, but no solution. A meeting was scheduled between
me and both HRBP’s including my Area Manager and Union, but still no
resolution. I have to this point requested a procedure from my HRC that
stipulates I am not allowed to make a vertical move, still that has also reached a
brick wall. The SCO HHRBP retaliated on the offer stating HR Recruitment
procedural irregularities whi ch I am unaware of, and have no influence
whatsoever.
The above matter has resulted in Occupational depression for me as no one has
thus far validated the procedure that I am not allowed to move, but rather a word
of mouth. I feel my growth is being hindered.
I am of the view that the movement is good for my personal career growth and
for the company as a whole.
Please see attached process Artisan position advertisement and offer from SCO.
Your intervention in the matter will be highly appreciated.
Kind Regards’
[22] The Applicant was the only witness on his application.
First Respondent’s evidence at arbitration
[23] The First Respondent then called Ms . Thobekile Chonco, who is the HR
consultant at Sasol Chemical Operations.
[24] Per the First Respondent’s evidence: the Applicant is working at Synfuels, and
he applied for the post at SCO ; that the Applicant, when he applied for the post ,
he manipulated the system to qualify for the interview, he said he had relevant
experience, yet he did not have. The First Respondent stated as follows: ‘when
an employee applies and answers all the screening questions correctly, then the
system filters them out. Those that don’t qualify, it does say disqualified and turns
orange on the system. So t hose that meet the minimum requirements, then they
are blue. That’s what we look at to shortlist, and in this instance with Khuliso that
9
was the case, he was blue’ . After the salary negotiations , there is still another
step that needs to be followed for approval , which is called SAP (System
Application Program), which involves loading the information, which also needs
to be approved.
[25] The witness further indicated that, “ the HR colleagues in Synfuels drew our
attention to a career progression of Artisan, which requires that an Artisan need
to be subjected to an assessment before she or he is progressed to the next
level. In the case of the A pplicant, “only the interview process was used to
determine competencies. It was during this process when we learned that site
logistics advertises Artisan position. Le- okay 1.7 says, learning was drawn in to
give advice on the matter. The recommendation was that we appoint the
candidate at a Process Control ler Grade one, which would have been a lateral
move and groom him for progression to a Senior Artisan’ . That she then emailed
her colleague Charlotte, who then said, ‘the Applicant doesn’t meet the
competencies according to his line manager to move across and to be promoted
to SCO’.
[26] Further, the witness submitted that the Applicant could not be appointed
because:
‘I think from a safety perspective, up in the experience that I, in there, we’ve had
a lot of safety cases of employees that are working there. So, it would’ve been a
risk, in my view, from a safety perspective to the other employees. That’s just
number one, n umber two, it also would’ve been unfair for the employees that
were within the area that also wanted to be promoted for that position that had
been there and had applied for the position as well.’
[27] The other witness for the First R espondent was Mr . Johan Vlam van Rooyen,
whose testimony, in short, was that he holds the position of HR Vice President at
SCO; that the position of Process Artisan was advertised, which prompted the
applicant to apply ; in his application, he completed a certain questionnaire; the
applicant to apply ; in his application, he completed a certain questionnaire; the
post required NQF4 and plant -specific experience; the application system
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excluded people who did not comply with the job advert based on answers
provided; the applicant could not have been promoted to the post of Process
Artisan Grade 02, due to the following reasons : he does not have relevant plant
specific related experience and that the promotion can never be vertical.
[28] Van Rooyen also indicated t hat the promotion could have been a safety risk, as
the Process Artisan Grade 02 has more knowledge of the process and process
flow of the plant, as opposed to the process controller, who is associated with the
physical inspection of the plant. As a Process Artisan Grade-02, one will be both
in and out of the plant, further that the flow of the two plants is different insofar as
operations such as pressure, temperature and flows. That lack of understanding
of the flow may lead to fatalities.
[29] The appointment of the A pplicant would have created a safety risk, due to the
fact that he does not have experience; further, it could have created grievance to
those who underwent training and were not afforded the opportunity to be
promoted to the position. For one to qualify for such a post, one has to undergo
training for a period of 12 to 24 months, some even longer. The A pplicant must
be signed off in order to be declared competent to do the tasks through
competency judgment. NQF 4 qualifications alone are not enough; one still
needs the practical experience obtained and signed off at a specific plant in order
to qualify for the p ost. Further, the post required experience relat ed to the post
and nothing else; if the Applicant’s response to the application was ‘no’, he would
not have been called for an interview.
[30] On cross -examination, Mr Van Rooyen indicated that he was not part of the
interviewing panel. The interview does not raise technical questions as it is more
of a behavioural interview, and an evaluation to determine whether the individual
will fit in the team. He further testified t hat the salary offered to the Applicant was
will fit in the team. He further testified t hat the salary offered to the Applicant was
not an offer, but a potential salary for negotiation purposes. The post was put on
hold upon a verification process , which revealed that the applicant did not
possess the necessary relevant experience.
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[31] The next witness for the First Respondent was Mr . Jacque Cloete, who is a
Senior Learning Practitioner at Sasol ROAS Site Services. He has NQF 4, as his
qualifications, with 12 years of experience under the Solvents area, where he
started off as a learner and worked up to Senior Process Artisan. For one to be
promoted to the post of Senior Process Artisan, ‘ one must do Theoretical
assessment and you need to pass it, then you do Task observation, then once
you’ve completed all your training on that one leg, you must write a final
theoretical assessment and practical task observation. So we have to do a final
assessment’. The final assessment will be about the whole plant and ‘you need
to get progressed or that you’ll have to be progressed. You need to complete
your technical training, that’s one of the requirements for you to become, from
PC Grade 2 PC Grade1. Y ou can’t do NQF 3, and 2- years’ experience and I
expect now I’m on PC, it doesn’t work like that. You still need to declare
competent in that area. So that’s why you’ve competencies that needs to be
measured against you in that area or environment’.
[32] On cross-examination, Mr Cloete responded that:
‘You don’t appoint a person on senior post, you first appoint on lower level and
then you start grooming and up skilling that individual to learn that plant, it will
make no business sense to appoint an individual as Senior Process Artisan if he
doesn’t have one bit of knowledge of the plant… the recommendation said he
does not have the necessary requirements, we will up skill him rather give him
training.’
[33] The next witness for the First Respondent was Nkosi Chonco, who indicated that
the Applicant applied for Process artisan Grade T wo within t he business unit
Secunda Chemical Operation. She is an HR Consultant; before, she was an HR
Business Partner. She was responsible for the advert. It came to her attention
that the company was in the process of recommending a candidate who was
that the company was in the process of recommending a candidate who was
coming from the Secunda Operation, that has no knowledge of the site logistics
environment. It was at that time that she instructed Thobekile to stop the process.
This was actually engaged with the senior mana ger in the business to say, ‘ we
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are stopping this process ’. The manager was Mr . Godfrey Hlatshwayo. The
candidate does not have the relevant experience required specifically for the sit e
logistics plant. Then, when she did that, she made her way to the Secunda
operation. She had a meeting with the management team in Secunda operations,
together with the employee, who is the Applicant in this case. It was Ms Chonco’s
understanding that , in terms of the post advertised, as far as this position is
concerned, if the answer is yes, it will mean that the Applicant has worked in the
site logistics for two to five years. The main reason for the withdrawal of the
position was ‘ the fact that the employee has never worked in the site logistics
environment, and it was not in the best interest of the business to make that
appointment’. Furthermore, having somebody who has no knowledge of the
plant, firstly, doesn’t serve the business in terms of the work that needs to be
done, and secondly, it was also a safety reason.
[34] On cross -examination, she was asked if ‘there were four panelist who
interviewed the A pplicant. It was Thobek ile Chonco, Jaco Venter, the other
person he could not remember . But out of those four people, why were they not
able to pick it up, that the applicant does not have this experience ’ and Mr
Chonco’s response was that, ‘the fact that I went and said, guys, we need to stop
this process. It sort of like tell s you that there was something wrong with the
process, otherwise, I wouldn’t stop the process if they’ve done it to the team’.
[35] The Applicant, in his argument , submitted that the Second Respondent , in her
award, failed to appreciate the totality of the evidence with regard to the
probability of witnesses. That the Applicant was shortlisted, interviewed and
recommended to be appointed for the position of Process Artisan Grade -02. He
was interviewed by HR Consultant, Ms . Thobekile Chonco, who offered him the
was interviewed by HR Consultant, Ms . Thobekile Chonco, who offered him the
position of Process Artisan Grade-02, which he accepted. Later, he was informed
by his own HR Consultant that he did not qualify for the post , and the post was
then withdrawn. The A pplicant then referred the matter to the Third Respondent
for adjudication. The Second Respondent , on behalf of the Third Respondent ,
ruled that the Applicant failed to discharge the onus to prove the claim of unfair
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labour practice against the First Respondent pertaining to demotion/incorrect
grading. Further , the Second Respondent further determined that the evidence
suggested that the Applicant does not qualify for promotion to the position of
Process Artisan Grade- 02, nor was he appointed to the position. And found that
the First Respondent did not commit an unfair labour practice.
In this Court
[36] The Applicant then referred the matter to this Court, raising the following grounds
to review the decision of the Second Respondent;
36.1 That the decision of the S econd Respondent is entirely disconnected from
the evidence or is unsupported by evidence.
36.2 Failure to properly consider, analyse and evaluate the facts of the dispute
against evidence brought before the commissioner (the advert merely
stated that the Applicant must have 2 to 5 years’ experience). The
Applicant, in pursuing the argument , referred to SA Metal ( Pty) Ltd v
Holroyd & Others
3, that for a relationship between an employer and
employee to exist, a written contract of employment is not a requirement.
The relationship commences the moment an offer is accepted. A letter of
employment is just a recordal of the terms already agreed upon.
36.3 Failure to appreciate the totality of evidence presented in deciding the
probabilities of issues and evidence before her, in determining the
credibility of witnesses (it is submitted that it is improbable that the
interviewing panel , which also consisted of HR practitioners , were not
aware at the shortlisting and interviewing stages of candidates that the
Applicant was not qualified for the position . No explanation was provided
3 (J2274/17) [2020] ZALCJHB 32 (5 February 2020) at para12.
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by the First Respondent as to why , in the interview , the lack of
qualification was not canvassed with the Applicant).
36.4 Failure by the commissioner to apply her mind to material facts or
evidence before her. (it is submitted that the First Respondent conceded
that a reasonable expectation was created that the Applicant would be
appointed. However , the commissioner did not apply her mind to that
material fact).
36.5 Failure by the commissioner to take into account factors she is bound to
take into consideration (it is submitted that the commissioner failed to take
into account that there was a panel constituted to interview and
recommend a suitable candidate, and such a recommendation cannot be
disregarded by the First Respondent). The Applicant , in his argument ,
referred to Shukla v Ethekwini Municipality Revenue Management and
Others
4, in which it is said that it is illegal and unlawful to interfere with the
work of an interview panel that made a recommendation of a candidate.
[37] The Applicant, in his argument , argued that the decision of the Second
Respondent is unreasonable as it is entirely disconnected from the evidence,
unsupported by any evidence and involves speculation by the arbitrator .5 Further
that the First Respondent ’s decision not to promote or to withdraw the
appointment of the Applicant was motivated by bad faith, as it occurred after
someone in his then or current employer (Sasol Synfuels Operations or SSO )
mentioned that the Applicant lacks relevant competencies. The Applicant further
referred to Woolworths (Pty) Ltd v Whitehead (Women’s Legal Centre Trust
Intervening)6.
[38] The First R espondent, in its opening argument , raised the fact that the record
was incomplete in that the evidence of Mr van Rooyen was not captured, but
argued that the review must , however, continue. I must say upfront that the
4 (D1833/2018) [2015] ZALCD 51 para 66
5 See: Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA).
5 See: Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA).
6 2000 (3) SA 529 (LAC) at para 22.
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evidence of Mr van Rooyen is actually part of the record as per the Second
Respondent’s handwritten notes. The Applicant applied online with the
Respondent but did not disclose that he did not have plant -specific experience in
the functions and site Logistics SCO Plant. The A pplicant did not possess any
plant-specific experience, therefore was not declared com petent to work on the
Site Logistics Plant and as a consequence did not meet the minimum job
requirements for the position.
[39] That, in terms of the First Respondent’s procedure7, applicants for promotion
must be on the same plant and must supply the following information: a r equest
form, minutes of three personal development discussions , results of trade-
specific, plant and plant -specific competency assessment s and a CV for the
applicant. Further, in terms of the p olicies of the First Respondent 8, a person to
be appointed/promoted must go through seven steps , which are advised to be
followed, and which include vacancy identification, sourcing, advertising,
screening and shortlisting, interview and selection, candidate verification and
appointment. Further, it was during the candidate verification process (vetting of
qualifications and minimum job requirements) that it came to light that the
Applicant did not qualify for the position, in that he does not have relevant plant -
specific qualifications, experience and competencies and that the Policy does not
support diagonal promotion from one plant to another.
[40] That only once the vetting has been completed successfully, the Applicant was
not supplied with a written l etter of appointment, and therefore, the process was
not completed. The evidence of the witnesses confirmed that on 13 November
2019, Thobekile Chonco called the A pplicant to inform him that he is the
preferred candidate for the new position and informed him that she would send
his salary information (remuneration information received from the Remuneration
his salary information (remuneration information received from the Remuneration
(so-called Rem Department) to the Applicant for him to consider, discuss with her
and respond to it. She requested him to send his qualifications to her for
7 Sasol Career Development of Artisan (SGI HRS-000002)
8 Human Resources Regional Policy; Recruitment (HR RP POE SA 109)
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confirmation and verification thereof by the First R espondent’s Learning and
Development. On the same date, at 08:31 AM, the Applicant transmitted an email
to Thobekile (subject: NQF Certificates) to which he attached his ‘ NQF
Certificate’ and wherein he stated, ‘ please find copies of certificates as
discussed’. On 15 November, the Applicant responded by saying, ‘you will let me
know the progress, I am ready to move’ . However, on the same date, Thobekile
responded and informed the applicant that the Area M anager still had to confirm
and verify his qualification.
[41] The First Respondent f urther argued that in dealing with reasonableness of not
appointing the Applicant into the position, the focus was the absence of plant
specific/relevant experience and reasonable expectation; that it is trite that the
Applicant does not have a right to be promoted, unless specifically agreed to or
provided by law, further that a reasonable expectation although denied to have
been created, is not a right, but an expectation, which the employer creates to be
treated fairly, when deciding what constitutes unfair conduct in the context of
promotions, the management prerogative of the e mployer remains of critical
importance.
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[42] The First Respondent f urther argued that the Labour Appeal Court held that the
appointment and promotion of employees fall squarely within the domain of the
employer, who must select the most suitable candidate in accordance with the
requirements of the post. The commissioner may only interfere when the
decision or reasoning of the employer is assailable because there is evidence
that:
a) The employer acted on the basis of an unreasonable, irrelevant or individual
consideration;
b) The employer’s decision was arbitrary, capricious, or unfair;
9 See: Department of Rural Development and Agrarian Reform v General Public Service Sectoral
Bargaining Council and Others [2020] 4 BLLR 353 (LAC) (Department of Rural Development) at para 23,
Department of Justice v CCMA & Others [2004] 4 BLLR 297 (LAC) at para 35, De Nysschen v General
Public Service Sectoral Bargaining Council & Others [2007] 5 BLLR 461 (LC).
17
c) The employer failed to apply its mind to the promotion;
d) The employer acted in bad faith; or
e) There is no rational relationship between the decision not to promote, the
purpose of the promotion, and the information upon which the impugned
decision is based.
10
[43] The First R espondent argued further that the Supreme Court of Appeal held as
follows11:
‘Reliance on the doctrine of legitimate expectation for any purpose presupposes
that the expectation qualifies as legitimate. The requirements for the legitimacy of
such expectation have been formulated thus:
(a) The representation inducing the expectation must be clear, unambiguous and
devoid of any relevant qualifications;
(b) The expectation must have been induced by the decision-maker;
(c) The expectation must be reasonable
(d) The representation must be one which is competent and lawful for the
decision-maker to make…’
[44] The First Respondent , with regard to question four of the application, asked the
Applicant whether he had 2 to 5 years relevant experience, to which he replied ,
‘Yes’. Mr. van Rooyen specifically testified that the word ‘ relevant’, within the
relevant experience, means plant -specific experience, which testimony was
corroborated by witnesses Mr . Jacques and Ms . Chonco. The Applicant is not
10 Mashaba v University of Johannesburg and Others (2023) 44 ILJ 156 (LAC). Public Servant
Association obo Thorne v Department of Community Safety (Western Cape) and Others [2018] 12 BLLR
1173 (LAC) at para 16. Department of Rural Development supra at para 23, South African Police Service
v Safety and Security Sectoral Bargaining Council and Others [2016] JOL 35883 (LAC) (SAPS) at para
41.3.
11 Duncan v Minister of Environmental Affairs and Tourism and another [2010] 2 All SA 462 (SCA) at para
15.
18
competent in terms of Section 8 of the Occupational Health and Safety Act12, and
appointing him to the new position would have resulted in a violation of health
and safety. Further, Ms. Thobekile Chonco did not have the legal authority to
offer the position; in her testimony , she denied having offered him the
appointment.
[45] In Sidumo13, the test for reviewing arbitration awards issued by the CCMA or
Bargaining Councils. The test asks whether the outcome of the arbitration is one
that no reasonable commissioner could have reached based on the evidence
presented. The record before me clearly indicates that the A pplicant was
shortlisted, interviewed and recommended for the post. The argument of the
Applicant is that the Second Respondent failed to consider the crucial evidence
before her, that the Applicant was interviewed, recommended and offered a post,
which he accepted. The A pplicant, in terms of offering the post , refers to the
conversation he had with Ms . Chonco and the subsequent email exchange. The
record further indicate that upon the discussion of the salary with Ms . Chonco,
the Applicant was asked to submit copies of his cer tificates, which he did as per
email, which was received and acknowledged by Ms . Chonco on 14 November
2019, the A pplicant then on 15 November 2019, wrote an email to Ms . Chonco,
which read ‘ pleasure, You will let me know the progress. I am ready to move’ .
The referral to the Second and Third R espondents was an unfair labour practice
dispute (refusal for MSP promotion vertical movement), which was what the
Second Respondent was to adjudicate on and nothing else. The applicant, during
his argument in this Court, raised the issue of contract, that he was offered a
contract which he accepted. The First Respondent objected to the new issue only
being brought up during argument. In dealing with this aspect, as the reviewing
court, this Court only focuses on what was before the Second Respondent, which
court, this Court only focuses on what was before the Second Respondent, which
is the unfair labour dispute (promotion), as the contention was about the failure to
promote and nothing else.
12 Act 85 of 1993.
13 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC).
19
[46] In terms of section 186(2)(a) of the L abour Relations Act14, any unfair act or
omission by an employer relating to promotion is an unfair labour practice. While
employees don’t have an automatic right to promotion, the law requires
employers to conduct the promotion process fairly, considering factors like
qualifications and experience. The argument of the First Respondent is that the
Applicant, although shortlisted, interviewed and chosen as the preferred
candidate, it was simply because when he applied for the post, in his answers to
question 4 relating to relevant experience, he indicated that he had relevant
experience, which he did not have. Further , his communication with Ms . Chonco
was not an offer of appointment, because other processes were still to be
followed before the final decision, and it was during that period that it was
discovered that he does not have relevant experience and that the policies of the
employer do not allow diagonal promotion.
[47] In Department of Justice v Commission for Conciliation, Mediation and Arbitration
and Others
15, the court said, ‘an employee who complains that the employer ’s
decision or conduct in not appointing him constitutes an unfair l abour practice,
must first establish the existence of such decision or conduct. If that decision or
conduct is not established, that is the end of the matter . If that decision or
conduct is proved, the enquiry into whether the conduct was unfair can follow ’. It
is common cause that the A pplicant was shortlisted, interviewed and chosen as
the preferred candidate. Further, a salary discussion was held with him ; it is
because of this conduct that he felt that the First R espondent committed an
unfair labour practice, by refusing to promote him.
[48] In George v Liberty Life Association of Africa Ltd
16, the court held that:
‘An employer has … a prerogative or wide discretion as to whom he or she will
promote or transfer to another position. …
14 Act 66 of 1995, as amended.
promote or transfer to another position. …
14 Act 66 of 1995, as amended.
15 (2004) 25 ILJ 248 (LAC) at para 73.
16 (1996) 17 ILJ 571 (IC) at 583H-I and 595A-B. See also
20
While it is submitted that the court should be careful not to intervene too readily
in disputes regarding promotion, especially to senior management positions, and
should regard this as an area where managerial prerogatives should be
respected unless bad faith or improper motive such as discrimination are
present.’
[49] In Department of Rural Development and Agrarian Reform v General Public
Service Sectoral Bargaining Council and Others 17 the Labour Appeal Court
confirmed that an employer’s discretion in a promotion decision is not absolute
and can be challenged if the decision or reasoning is unreasonable, arbitrary,
capricious or made in mala fide.
[50] The First Respondent referred the Second Respondent to their Human
Resources/ Regional Policy Recruitment ( HR RP POE SA 109) , which reads as
follows ‘internal candidates to be vetted in relation to additional qualifications that
were not vetted upon their entry to the organisation, should the qualification be a
minimum requirement of the role applied for’. Further argued that the offering of a
salary was not the final stage, the A pplicant was still to be vetted, and that it was
at that stage that it was picked up that the wrong candidate was selected as the
preferred candidate.
[51] The terms of the Sasol Procedure: Career development of artisans, reads as
follows:
‘Procedure for career progression of an artisan
• The artisan compiles a portfolio of evidence, according to the Sasol
career ladder requirements, with assistance from the Department
Learning Practitioner and/or First Line Manager.
• The artisan completes the request for career development form,SAS -
450(appendix A)
17 [2020] 4 BLLR 353 (LC)
21
• The first line manager and Departmental Learning Practitioner
acknowledge the artisan’s request form and the BU LM send a copy to
the GL Skills Academy.
• The artisan completes the area specific competency assessment for the
relevant area and the trade generic competency assessment at the
Global Learning (GL) Academy.
• The verification panel verifies that the correct process has been followed.
• The verification panel signs off on the process.
• The HRC communicates the artisan career progression requirements to
the relevant stakeholders.
• The First Line Manager communicates the outcome to the artisan.’
[52] The First Respondent argued that the Applicant had zero experience in the field
of Artisan, as his current post is Process Controller Grade 01 at Sasol Synfuels
Operation, which is a different plant from the one for which he applied. The
Applicant conceded that he does not have experience with the plant, but was
hoping to be trained. It was also the evidence that cross -promotion is not allowed
at Sasol; one can be moved from one plant to the other , but on the same post
and not as promotion.
[53] In the email exchange between the Applicant and Ms. Chonco, which appears to
be what is termed ‘ acceptance of offer ’, the email sent by the A pplicant reads ‘ I
am ready to move, I will hear from you’ . This was to be based on the other event
still to take place, being the vetting and the final decision from the relevant
manager. The Applicant, in terms of the email communication, was well aware.
Further, the policies of the First Respondent are very clear in terms of procedure
to be followed on promotion; this aspect was not challenged by the A pplicant,
and these remain the policies of the First Respondent, which remain applicable in
their workplace.
22
[54] The Applicant conceded that he never worked in the plant he applied for, and
that the post itself is a higher post which requires managerial skill. In Department
of Higher Education and Training v Commissioner Bheki Smiza General Public
Service Sectoral and Others18, the court held as follows ‘employers are obliged
to follow their own established policies and procedures for recruitment and
promotion applying them consistently, and any additional shortlisting criteria
fairly’. It was further said in Noonan v S afety and S ecurity Sectoral Bargaining
Council and Others
19 that, while employees deserve a fair chance to compete,
there is no automatic right to promotion.
[55] In my view, the First Respondent was able to demonstrate that it has policies
relating to promotion and that those policies are a yardstick to promote fairness ;
the courts are not allowed to interfere w ith the policies of the employer on
promotion. The reliance of the Applicant on the issue of his being told of the
salary and the fact that he was chosen as the preferred candidate does not
automatically qualify him to be promoted. An employer, before appointment, must
follow the processes contained in their policies, in this case, the vetting was still
to be done and it was at this stage that it was picked up that the A pplicant does
not have any experience relating to the post he applied for, the fact that he was
the preferred candidate, does not take away the right of the employer to still
follow his own policies on promotion.
[56] The decision of the First Respondent relating to this post was definitely fair, and I
am of the view that the A pplicant failed to demonstrate the unfairness of the
conduct of the First Respondent.
[57] The evidence before the Second Respondent did not demonstrate any unfair
conduct by the First Respondent ; therefore, the Applicant failed to demonstrate
unfairness on the part of the First Respondent.
[58] In the premises, the following order is made:
[58] In the premises, the following order is made:
18 (JA53) (2022) [2024] ZALAC 5; [2024] 5 BLLR 447 (LAC) 45 IJL 1981 (LAC).
19 (2012) 33 ILJ 2597(LAC)
23
Order
1. The review application is dismissed.
2. There is no order as to costs.
____________________
M. Ramalatso
Acting Judge of the Labour Court of South Africa
24
Appearances:
For the Applicant: Adv Tshisevhe
Instructed by: Mangatshe Attorneys
For the First Respondent: Adv P.H. Kinstein
Instructed by: JR Attorneys