Ncane v Lyster and Others (D05/2012) [2014] ZALCD 75 (8 December 2014)

Ncane v Lyster and Others (D05/2012) [2014] ZALCD 75 (8 December 2014)

The court found that the Third Respondent failed to comply with National Instruction 2 of 2008 by not keeping a written record of the interview proceedings, decisions, and reasons, which prejudiced the applicant's ability to challenge his non-promotion. The evidence showed that the applicant was not properly credited for his qualifications and experience, and the allocation of points was incorrect. The arbitrator failed to properly consider this evidence, making the award reviewable. While the court could not conclude that the applicant should have been promoted above the successful incumbent, it held that the process was both procedurally and substantively unfair. The appropriate relief...

Citation
[2014] ZALCD 75
Parties
Applicant: H. N. Ncane; Respondent: R. Lyster N.O.; Respondent: Safety & Security Sectoral Bargaining Council (SSSBC); Respondent: The National Commissioner for South African Police Services; Respondent: S. Khambule
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 December 2014
Case Number
D05/2012
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The applicant is awarded compensation for unfair labour practice. Costs are awarded against the Third Respondent.
Judges
Nel
Legal Topics
Unfair Promotion, Procedural Fairness, Substantive Fairness, National Instruction 2 2008, Compensation for Unfair Labour Practice
Labour Law Unfair Promotion Procedural Fairness Substantive Fairness National Instruction 2 2008 Compensation for Unfair Labour Practice

Case Brief

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Parties

H. N. Ncane

Applicant

R. Lyster N.O.

Respondent

Safety & Security Sectoral Bargaining Council (SSSBC)

Respondent

The National Commissioner for South African Police Services

Respondent

S. Khambule

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant's non-promotion was procedurally unfair due to non-compliance with National Instruction 2 of 2008.
  2. 2 Whether the applicant's non-promotion was substantively unfair based on the allocation of points and assessment criteria.
  3. 3 Whether the arbitration award should be reviewed and substituted with compensation for the applicant.

Ratio Decidendi

The court found that the Third Respondent failed to comply with National Instruction 2 of 2008 by not keeping a written record of the interview proceedings, decisions, and reasons, which prejudiced the applicant's ability to challenge his non-promotion. The evidence showed that the applicant was not properly credited for his qualifications and experience, and the allocation of points was incorrect. The arbitrator failed to properly consider this evidence, making the award reviewable. While the court could not conclude that the applicant should have been promoted above the successful incumbent, it held that the process was both procedurally and substantively unfair. The appropriate relief...

Court Disposition

The arbitration award is reviewed and set aside. The applicant is awarded compensation for unfair labour practice. Costs are awarded against the Third Respondent.

Orders

  • The arbitration award is reviewed and set aside.
  • The applicant is awarded five months' compensation calculated at the rate of his remuneration as at 11 December 2011.