Kearns v Phatshoane NO and Others (JR2569/07) [2015] ZALCJHB 191 (30 June 2015)

Kearns v Phatshoane NO and Others (JR2569/07) [2015] ZALCJHB 191 (30 June 2015)

The arbitrator’s finding that Van den Berg met the qualification requirements for the post, specifically a Bachelor’s degree or equivalent tertiary qualification, was unreasonable given the lack of evidence that the CCMA commissioner training course was equivalent to a Bachelor’s degree. The arbitrator improperly placed the onus on the applicant to prove the absence of an equivalent qualification, despite it being common cause that Van den Berg did not possess a Bachelor’s degree. This constituted a reviewable irregularity. The only way to correct this is to remit the dispute for fresh arbitration before a different arbitrator, where proper evidence regarding the equivalence of...

Citation
[2015] ZALCJHB 191
Parties
Applicant: John Kearns; Respondent: V Phatshoane N.O.; Respondent: PHWSBC; Respondent: Department of Social Services and Population Development (Northern Cape); Respondent: Johan Van Den Berg
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 June 2015
Case Number
JR2569/07
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside and dispute remitted for fresh arbitration before a different arbitrator.
Judges
Steenkamp
Legal Topics
Unfair Labour Practice, Failure to Promote, Review of Arbitration Award, Qualification Requirements, Condonation
Labour Law Unfair Labour Practice Failure to Promote Review of Arbitration Award Qualification Requirements Condonation

Case Brief

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Parties

John Kearns

Applicant

V Phatshoane N.O.

Respondent

PHWSBC

Respondent

Department of Social Services and Population Development (Northern Cape)

Respondent

Johan Van Den Berg

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity by finding that the successful candidate met the minimum qualification requirements for promotion.
  2. 2 Whether the arbitrator improperly placed the onus on the applicant to prove the absence of an equivalent qualification.
  3. 3 Whether condonation should be granted for the late filing of the review application and answering affidavit.

Ratio Decidendi

The arbitrator’s finding that Van den Berg met the qualification requirements for the post, specifically a Bachelor’s degree or equivalent tertiary qualification, was unreasonable given the lack of evidence that the CCMA commissioner training course was equivalent to a Bachelor’s degree. The arbitrator improperly placed the onus on the applicant to prove the absence of an equivalent qualification, despite it being common cause that Van den Berg did not possess a Bachelor’s degree. This constituted a reviewable irregularity. The only way to correct this is to remit the dispute for fresh arbitration before a different arbitrator, where proper evidence regarding the equivalence of...

Court Disposition

Arbitration award set aside and dispute remitted for fresh arbitration before a different arbitrator.

Orders

  • The arbitration award under case number PSHS 487-06/07 is reviewed and set aside.
  • The dispute is remitted to the Bargaining Council for fresh arbitration before an arbitrator other than the first respondent.