Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9; [2012] 9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012)

Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9; [2012] 9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012)

The Labour Appeal Court found that the promotion process was procedurally unfair due to the third party's failure to disclose a valid disciplinary warning and the selection panel's failure to verify application information. This unfairness prejudiced the appellant, who competed against a candidate who may not have been legitimately shortlisted. However, the appellant could not prove he would have been promoted but for the unfairness. The appropriate remedy was compensation, not promotion, and the compensation was set at nine months' remuneration, reflecting the extent of the breach of fairness. The arbitrator exceeded his powers by ordering promotion, and the award was amended...

Citation
[2012] ZALAC 9
Parties
Appellant: George Noonan; Respondent: Safety & Security Sectoral Bargaining Council; Respondent: John C Robertson N.O.; Respondent: Minister of Police
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
1 June 2012
Case Number
PA 1/11
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Setting Aside Arbitration Award
Outcome
Appeal upheld in part; arbitration award amended to compensation for procedural unfairness.
Judges
Tlaletsi JA, Ndlovu JA, Landman AJA
Legal Topics
Unfair Labour Practice, Promotion Dispute, Procedural Fairness, Compensation, Arbitration Review
Labour Law Civil Procedure Unfair Labour Practice Promotion Dispute Procedural Fairness Compensation Arbitration Review

Case Brief

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Parties

George Noonan

Appellant

Safety & Security Sectoral Bargaining Council

Respondent

John C Robertson N.O.

Respondent

Minister of Police

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Setting Aside Arbitration Award

Legal Issues

  1. 1 Whether the promotion process for the advertised post was procedurally fair.
  2. 2 Whether the appellant was prejudiced by the third party's non-disclosure of a disciplinary warning.
  3. 3 Whether the appellant is entitled to compensation for procedural unfairness in the promotion process.

Ratio Decidendi

The Labour Appeal Court found that the promotion process was procedurally unfair due to the third party's failure to disclose a valid disciplinary warning and the selection panel's failure to verify application information. This unfairness prejudiced the appellant, who competed against a candidate who may not have been legitimately shortlisted. However, the appellant could not prove he would have been promoted but for the unfairness. The appropriate remedy was compensation, not promotion, and the compensation was set at nine months' remuneration, reflecting the extent of the breach of fairness. The arbitrator exceeded his powers by ordering promotion, and the award was amended...

Court Disposition

Appeal upheld in part; arbitration award amended to compensation for procedural unfairness.

Orders

  • The award of the second respondent is reviewed and amended to declare the promotion process an unfair labour practice.
  • The employee is entitled to compensation for procedural unfairness.