PSA obo Tlowana v MEC of Agriculture (JR868/10) [2012] ZALCJHB 121; (2012) 33 ILJ 2675 (LC) (24 February 2012)

PSA obo Tlowana v MEC of Agriculture (JR868/10) [2012] ZALCJHB 121; (2012) 33 ILJ 2675 (LC) (24 February 2012)

The court found that the arbitrator committed a gross irregularity by failing to properly consider the material evidence that the fourth respondent did not meet the essential requirements for the post, specifically lacking knowledge of the Persal system. The short-listing and appointment process was haphazard and random, contrary to the principles of rational affirmative action. The applicant, Mr Tlowana, was prejudiced by this process and deserved to have been promoted from the date the fourth respondent was appointed. The arbitration award was reviewed and set aside, and the court substituted its own decision, ordering compensation for the applicant.

Citation
[2012] ZALCJHB 121
Parties
Applicant: PSA obo M P Tlowana; Respondent: MEC of Agriculture
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
24 February 2012
Case Number
JR868/10
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is upheld; the arbitration award is set aside and substituted with an order for compensation to the applicant.
Judges
Cele
Legal Topics
Unfair Labour Practice, Promotion, Affirmative Action, Employment Equity Act, Gross Irregularity, Compensation for Delayed Appointment
Labour Law Unfair Labour Practice Promotion Affirmative Action Employment Equity Act Gross Irregularity Compensation for Delayed Appointment

Case Brief

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Parties

PSA obo M P Tlowana

Applicant

MEC of Agriculture

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the third respondent committed a gross irregularity in the arbitration proceedings.
  2. 2 Whether the appointment of the fourth respondent was rational and in accordance with the Employment Equity Act.
  3. 3 Whether the applicant was entitled to compensation for delayed appointment due to unfair labour practice.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by failing to properly consider the material evidence that the fourth respondent did not meet the essential requirements for the post, specifically lacking knowledge of the Persal system. The short-listing and appointment process was haphazard and random, contrary to the principles of rational affirmative action. The applicant, Mr Tlowana, was prejudiced by this process and deserved to have been promoted from the date the fourth respondent was appointed. The arbitration award was reviewed and set aside, and the court substituted its own decision, ordering compensation for the applicant.

Court Disposition

The review application is upheld; the arbitration award is set aside and substituted with an order for compensation to the applicant.

Orders

  • The first respondent is ordered to compensate Mr Tlowana to the extent claimed by him.
  • Interest on the compensation is payable from the date of this order.