Adams v General Public Service Sectoral Bargaining Council and Others (C839/2019) [2021] ZALCCT 46 (30 June 2021)

Adams v General Public Service Sectoral Bargaining Council and Others (C839/2019) [2021] ZALCCT 46 (30 June 2021)

The court found that the shortlisting process for the promotional post was unfair and lacked transparency, particularly regarding the application of employment equity principles. The Department failed to disclose the qualifications of other shortlisted candidates and inconsistently applied selection criteria, including an unwarranted requirement for current employment in the TVET/CET environment. The Commissioner failed to consider these discrepancies and the impact of employment equity, rendering her award unreasonable. The applicant was denied a fair opportunity to compete for the post, and the Department committed an unfair labour practice. The appropriate remedy was to set aside the...

Citation
[2021] ZALCCT 46
Parties
Applicant: Gavin Adams; Respondent: The General Public Service Sectoral Bargaining Council; Respondent: Theresa Erasmus (Commissioner); Respondent: The Department of Higher Education and Training
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
30 June 2021
Case Number
C839/2019
Procedural Posture
Review Application / Judgment After Opposed Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The Department committed an unfair labour practice. The applicant is to be shortlisted for any re-advertised post and is awarded compensation equivalent to six months' salary.
Judges
Rabkin-Naicker
Legal Topics
Unfair Labour Practice, Promotion Dispute, Employment Equity, Shortlisting Procedure, Compensation, Review of Arbitration Award
Labour Law Civil Procedure Unfair Labour Practice Promotion Dispute Employment Equity Shortlisting Procedure Compensation Review of Arbitration Award

Case Brief

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Parties

Gavin Adams

Applicant

The General Public Service Sectoral Bargaining Council

Respondent

Theresa Erasmus (Commissioner)

Respondent

The Department of Higher Education and Training

Respondent

Procedural Posture

Review Application / Judgment After Opposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the shortlisting process for the promotional post was fair and in accordance with employment equity principles.
  2. 2 Whether the applicant was subjected to an unfair labour practice relating to promotion.
  3. 3 Whether the arbitration award was one that a reasonable decision maker could reach on the evidence.

Ratio Decidendi

The court found that the shortlisting process for the promotional post was unfair and lacked transparency, particularly regarding the application of employment equity principles. The Department failed to disclose the qualifications of other shortlisted candidates and inconsistently applied selection criteria, including an unwarranted requirement for current employment in the TVET/CET environment. The Commissioner failed to consider these discrepancies and the impact of employment equity, rendering her award unreasonable. The applicant was denied a fair opportunity to compete for the post, and the Department committed an unfair labour practice. The appropriate remedy was to set aside the...

Court Disposition

The arbitration award is reviewed and set aside. The Department committed an unfair labour practice. The applicant is to be shortlisted for any re-advertised post and is awarded compensation equivalent to six months' salary.

Orders

  • The Award under case number GPBC600/2019 is reviewed and set aside and substituted as follows:
  • The Third Respondent committed an unfair labour practice in terms of section 186(2)(a) of the LRA.