IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO:C484/98
In the matter between:
DEPARTMENT OF HEALTH WESTERN CAPE
Applicant
and
First Respondent
HOSPITAL PERSONNEL TRADE UNION
Second Respondent
JUDGEMENT
ZONDO J:
[1] In this matter I give judgment which I reserved after hearing argument last week. The
applicant has brought an application to have a certain arbitration award reviewed and set
aside. The award is one which was issued by the first respondent, a Commissioner of the
Commission for Conciliation Mediation and Arbitration (CCMA). The award was issued in
respect of a dispute between the applicant and the second respondent over the applicant's
failure or refusal to appoint one Mr Abrahams to the position of administrative officer.
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[2] The applicant had advertised a vacancy of a senior administrative officer in a newspaper.
Mr Abrahams responded to that advertisement by applying for that post. He was called for
an interview. At the interview he was informed that the post of senior administrative officer
was no longer available. He was, however, offered an interview there and then for the
position of an administrative officer. He agreed to be interviewed for that post.
Subsequently he was shown a letter which appointed him to the position of administrative
officer. He was excited about this and started informing his colleagues about his new
appointment. However, Mr Abrahams' excitement proved shortlived because no sooner had
he started telling his colleagues about his new appointment as an administrative officer than
he was informed that actually there had been a mistake and that his appointment was to the
position of assistant administrative officer and not administrative officer. Though Mr
Abrahams was very disappointed by this news, he accepted the appointment to the position
of assistant administrative officer under protest.
[3] A dispute arose between the applicant on the one hand and Mr Abrahams on the other about
whether or not the applicant's failure to appoint him as an administrative officer, or put
differently whether the applicant's withdrawal of Mr Abrahams' appointment as an
administrative officer constituted an unfair labour practice as envisaged in the unfair labour
practice provisions of the Labour Relations Act, 1995 ( “the Act” ). The second respondent
and Mr Abrahams contended that it did, whereas the applicant contended that it did not. The
dispute was referred to the CCMA for arbitration where the first respondent was appointed
to arbitrate it. The first respondent, a Commissioner of the CCMA, arbitrated the dispute
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and issued his arbitration award.
[4] In terms of the arbitration award, the first respondent found that the conduct of the applicant
constituted an unfair labour practice. She ordered that Mr Abrahams be “confirmed” (to
use the Arbitrator's words) in the post of administrative officer by means of a letter of
appointment, backdated to 16 September 1996 and that the difference in salary for the
interim period be paid to him.
[5] It would appear from a reading of the award that the applicant's defence before the first
respondent, which was the same case pursued in this application, was that in order for Mr
Abrahams to be appointed to the position of administrative officer, he was required to have
had a tertiary institution qualification and experience gained after obtaining such
qualification. It is common cause that at the time of the interview, Mr Abrahams did not
have such qualification.
[6] The second respondent's attack before the first respondent appears to have been based on the
contention that the applicant had waived or condoned Mr Abrahams' nonfulfilment of this
requirement. The basis of the first respondent's finding was that the applicant condoned the
fact that Mr Abrahams did not have the required three year qualification and experience
obtained after the acquisition of such qualification at the time of the interview. The
condonation was found by the first respondent to be constituted by the applicant's act in
shortlisting Mr Abrahams for an interview.
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[7] The first respondent seems to have based her finding of unfairness on the applicant's part on
the allegation that the applicant had failed to explain to Mr Abrahams at the interview and
thereafter that he did not qualify for the post of administrative officer. The first respondent
said Mr Abrahams expected to be appointed to the position of administrative officer because
the applicant had not told him he did not qualify for the post. Furthermore, the first
respondent said she believed that the applicant acknowledged experience obtained prior to
the acquisition of the tertiary qualification. She also referred to a report made about Mr
Abrahams' performance in the interview and she said it demonstrated that his experience
before getting the qualification was acknowledged. The interview report reads thus:
"During the course of interview, Mr Abrahams demonstrated to us that he had the
criteria for the position, these included initiative. His qualifications and experience
indicate he had the accounting and computing expertise required."
The first respondent found that it could not be said that Mr Abrahams' qualifications were
not known to the applicant. Also the first respondent emphasised that the applicant had no
complaint about Mr Abrahams' capabilities.
[8] Mr Oosthuizen, who appeared for the applicant, submitted that the award of the first
respondent required the applicant to act in breach of the provisions of the Public Service Act
and that an award that required an employer to do that fell to be reviewed and set aside. The
argument on behalf of the second respondent, as I have already indicated, was simply that
the employer in this case had condoned Mr Abrahams’ lack of qualification and that it was
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not open to the employer to rely on the lack of the said qualification to deny Mr Abrahams
the position for which he had been interviewed.
[9] This case turns on the question whether or not the award issued by the first respondent is an
award which the Commissioner had power to issue. There can be no doubt that the award
that she issued would have the effect that the employer, in this case the applicant, should do
something that it had no right to do, or should do something that would be contrary to the
provisions of the Public Services Act and that the employer should appoint somebody to a
position for which he did not qualify.
[10] Also the issue of waiver has been raised by the second respondent. The difficulty that I have
with the issue of waiver is, firstly, that the requirements which have been laid down for this
particular post, as is the case with many other posts in the Public Service, is not a
requirement that has been laid down by the employer. It is one that has been laid down by
the Public Service Commission which lays down requirements for various posts in the
Public Service. It is not open, in my view, to the employer to waive such a requirement.
What is conceivable is that the employer may well be able to obtain some ruling or directive
from the Public Service Commission waiving a particular requirement. Whether or not that
can be done, I do not know and that is not a matter that was argued before me. The fact of
the matter is that it is a requirement which is not stipulated by the employer but it is one
which is stipulated by another statutory body, whose function includes ensuring that proper
requirements are laid for posts in the Public Service.
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[11] The other difficulty I have with the argument of the second respondent is that this is not a
private employer. It is an employer in the Public Service. There is an element of public
interest involved. The public is entitled to know that people who get appointed to various
positions will be people who meet the requirements for those positions. In my view, it is
not, generally speaking, open to the employer to simply waive or condone such a
requirement in such circumstances.
[12] Mr Oosthuizen has referred me to a number of judgments one of which is that of Hlophe J
in The University of the Western Cape & Others v Member of Executive Committee
for Health and Social Services & Others , 1998(3) SA 124 (C). There Hlophe J dealt with
a case where the applicants, inter alia, argued that they should be appointed to certain posts
even though such posts had not been advertised and even though the Public Service Staff
code required that they should be advertised first. Hlophe J said, quite correctly in my view,
that the applicants could not have a legitimate expectation that something cotrary to the law
would be done. In the same way I am of the opinion that the applicant in this case could not
condone or waive a requirement which it had no power to waive. The arbitrator had no
power to order the applicant to appoint Mr Abrahams contrary to the law. In making such an
award the commissioner exceeded his powers. Accordingly I have come to the conclusion
that the application must succeeded. With regard to costs I am of the opinion that the
applicant has treated Mr Abrahams unfairly enough already. Firstly, he was invited for an
interview for the position of senior administrative officer which, it turned out at the
interview, was not available. Secondly, he was offered an interview in respect of the position
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of administrative officer, which, it has subsequently turned out, he did not qualify for. In
those circumstances I think it would not be in accordance with the requirements of the law
and fairness to award costs in favour of the applicant. Accordingly I propose to make no
order as to costs.
[13] During argument I was told that there was an application to make the arbitration award an
order of Court which had been filed by the second respondent. In the light of the conclusion
which I have reached on the review application, it follows that the application to make the
award an order of Court cannot succeed. For the above reasons the order that I make is the
following :
1. The arbitration award issued by the first respondent under case number WE11053 in the
CCMA is hereby reviewed and set aside.
2. The application to make the arbitration award referred to in 1 above an order of Court is
hereby dismissed.
3. There is to be no order as to costs.
R. M. M ZONDO
Judge in the Labour Court of South Africa
DATE: 1031999
For the Applicant :Mr Oosthuizen
:The State Attorney of WCP
For the Respondent :Miss A. Kyriakou
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:HOSPERSA
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