POPCRU obo Thokwane v Pretorius NO and Others (JR1484/18) [2020] ZALCJHB 214 (1 September 2020)

POPCRU obo Thokwane v Pretorius NO and Others (JR1484/18) [2020] ZALCJHB 214 (1 September 2020)

The Labour Court found that the selection panel for the promotion of Colonel Maharaj was not properly constituted in terms of National Instruction 6/2005, as it lacked the required quorum and relevant knowledge of the post's core functions. The uncontested evidence showed that the employee was better qualified and...

Source-derived case information.

Citation
[2020] ZALCJHB 214
Parties
Applicant: POPCRU obo RM Thokwane; Respondent: Johann Pretorius N.O.; Respondent: Safety & Security Sectoral Bargaining Council; Respondent: South African Police Service; Respondent: V Maharaj
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
1 September 2020
Case Number
JR1484/18
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
Application for review granted; arbitration award and appointment of Colonel Maharaj set aside; no order for retrospective promotion; each party to bear their own costs.
Judges
S Mabaso
Legal Topics
Unfair Labour Practice, Promotion Dispute, National Instruction Compliance, Arbitration Review, Procedural Fairness
Labour Law Civil Procedure Unfair Labour Practice Promotion Dispute National Instruction Compliance Arbitration Review Procedural Fairness

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Summary, issues, holding and outcome

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Parties

POPCRU obo RM Thokwane

Applicant

Johann Pretorius N.O.

Respondent

Safety & Security Sectoral Bargaining Council

Respondent

South African Police Service

Respondent

V Maharaj

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award issued by the First Respondent was reasonable and lawful.
  2. 2 Whether the selection panel for the promotion complied with National Instruction 6/2005.
  3. 3 Whether the employee was unfairly prejudiced by the panel's composition and conduct.

Ratio Decidendi

The Labour Court found that the selection panel for the promotion of Colonel Maharaj was not properly constituted in terms of National Instruction 6/2005, as it lacked the required quorum and relevant knowledge of the post's core functions. The uncontested evidence showed that the employee was better qualified and that the panel's failure to comply with the policy resulted in procedural and substantive unfairness. The arbitrator's conclusion that there was no prejudice or bad faith was unreasonable given the totality of the evidence. The appointment of Colonel Maharaj was set aside, but the court declined to order the retrospective promotion of the employee, instead remitting the matter...

Court Disposition

Application for review granted; arbitration award and appointment of Colonel Maharaj set aside; no order for retrospective promotion; each party to bear their own costs.

Orders

  • The arbitration award issued by the First Respondent under the Second Respondent's case number PSSS263-/17/18 is reviewed and set aside.
  • The conduct of the Third Respondent in not selecting and appointing Lieutenant Colonel Thokwane is declared unfair labour practice relating to promotion.