South African Police Services v Safety and Security Sectoral Bargaining Council and Others (P54/09) [2010] ZALC 58; [2010] 8 BLLR 892 (LC) ; (2010) 31 ILJ 2711 (LC) (13 April 2010)

South African Police Services v Safety and Security Sectoral Bargaining Council and Others (P54/09) [2010] ZALC 58; [2010] 8 BLLR 892 (LC) ; (2010) 31 ILJ 2711 (LC) (13 April 2010)

The court found that the arbitrator exceeded his authority by ordering the promotion of the respondent without any evidence establishing her as the most suitable candidate among those shortlisted. The arbitrator failed to recognize that the evaluation panel only made a recommendation and lacked final decision-making power, which resided with the National Commissioner. The referral to arbitration was premature as no final decision not to promote had been made. The arbitrator misunderstood his role, which is limited to overseeing procedural fairness, not usurping the employer's discretion. The respondent did not discharge the onus of proving unfairness in the recommendation to re-advertise,...

Citation
[2010] ZALC 58
Parties
Applicant: South African Police Services; Respondent: Safety and Security Sectoral Bargaining Council; Respondent: J Labuschagne N.O; Respondent: Gertruida Petronella Swart
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 April 2010
Case Number
P54/09
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Paragraph 1 of the arbitration award is reviewed and set aside. Condonation for the late filing of the review application is granted. No order as to costs.
Judges
AC Basson
Legal Topics
Unfair Labour Practice, Promotion of Employees, Managerial Prerogative, Review of Arbitration Award
Labour Law Civil Procedure Unfair Labour Practice Promotion of Employees Managerial Prerogative Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

South African Police Services

Applicant

Safety and Security Sectoral Bargaining Council

Respondent

J Labuschagne N.O

Respondent

Gertruida Petronella Swart

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the arbitrator's award ordering promotion of the respondent constituted a reasonable and lawful exercise of discretion.
  2. 2 Whether the recommendation to re-advertise the post amounted to an unfair labour practice.
  3. 3 Whether the arbitrator had authority to order promotion absent evidence of comparative suitability.

Ratio Decidendi

The court found that the arbitrator exceeded his authority by ordering the promotion of the respondent without any evidence establishing her as the most suitable candidate among those shortlisted. The arbitrator failed to recognize that the evaluation panel only made a recommendation and lacked final decision-making power, which resided with the National Commissioner. The referral to arbitration was premature as no final decision not to promote had been made. The arbitrator misunderstood his role, which is limited to overseeing procedural fairness, not usurping the employer's discretion. The respondent did not discharge the onus of proving unfairness in the recommendation to re-advertise,...

Court Disposition

Paragraph 1 of the arbitration award is reviewed and set aside. Condonation for the late filing of the review application is granted. No order as to costs.

Orders

  • Condonation for the late filing of the review application is granted.
  • Paragraph 1 of the arbitration award is reviewed and set aside.