Solidarity obo Kern v Mudau and Others (JR 987/05) [2007] ZALC 131; [2007] 6 BLLR 566 (LC); (2007) 28 ILJ 1146 (LC) (19 January 2007)

Solidarity obo Kern v Mudau and Others (JR 987/05) [2007] ZALC 131; [2007] 6 BLLR 566 (LC); (2007) 28 ILJ 1146 (LC) (19 January 2007)

The court found that the arbitrator misconstrued the concept of demotion by focusing solely on financial loss. The evidence established that JF Kern was placed in a post inferior in status, functions, and responsibilities to his previous position, constituting a demotion and an unfair labour practice under section 186(2)(a) of the Labour Relations Act. The breach of the collective agreement regulating placement further supported Kern's claim. The court held that the respondent's reliance on employment equity and affirmative action was not borne out by the facts, as Kern was the only employee whose qualifications and experience matched the Manager Human Resources post. The court exercised...

Citation
[2007] ZALC 131
Parties
Applicant: Solidarity obo J F Kern; Respondent: R Mudau; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Local Municipality of Lekwa
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
19 January 2007
Case Number
JR 987/05
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; compensation awarded to JF Kern.
Judges
Mokgoatlheng
Legal Topics
Unfair Labour Practice, Demotion, Collective Agreement, Compensation, Placement Policy, Remedies
Labour Law Unfair Labour Practice Demotion Collective Agreement Compensation Placement Policy Remedies

Case Brief

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Parties

Solidarity obo J F Kern

Applicant

R Mudau

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Local Municipality of Lekwa

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the placement of JF Kern as Committee Officer constituted a demotion and unfair labour practice under section 186(2)(a) of the Labour Relations Act.
  2. 2 Whether the arbitrator misdirected himself in finding that no demotion occurred absent financial loss.
  3. 3 Whether the breach of the collective agreement entitled JF Kern to compensation under section 194(4) of the Labour Relations Act.

Ratio Decidendi

The court found that the arbitrator misconstrued the concept of demotion by focusing solely on financial loss. The evidence established that JF Kern was placed in a post inferior in status, functions, and responsibilities to his previous position, constituting a demotion and an unfair labour practice under section 186(2)(a) of the Labour Relations Act. The breach of the collective agreement regulating placement further supported Kern's claim. The court held that the respondent's reliance on employment equity and affirmative action was not borne out by the facts, as Kern was the only employee whose qualifications and experience matched the Manager Human Resources post. The court exercised...

Court Disposition

Application for review granted; arbitration award set aside; compensation awarded to JF Kern.

Orders

  • The Third Respondent is ordered to pay compensation to JF Kern in the amount of R192,714.64, being the equivalent of 12 months remuneration, calculated as the difference between the Manager Human Resources and Committee Officer posts.
  • The Third Respondent is entitled to deduct any applicable income tax from the compensation amount in terms of the Income Tax Act 58 of 1962.