South Africa Case Law

Passenger Rail Agency South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR137/2015)

Passenger Rail Agency South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR137/2015) [2018] ZALCJHB 160 (26 April 2018)

Court

Labour Court Johannesburg

Case number

JR137/2015

Judge

E Tlhotlhalemaje

The Labour Court granted condonation for a 17-month late answering affidavit in a review matter, despite an inadequate explanation, to let the respondent defend an award.

• Condonation
• Unfair Labour Practice
• Protective Promotion
• Review Of Arbitration Award
• Late Filing
• Costs Order

City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR1513/11)

City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR1513/11) [2015] ZALCJHB 369 (27 October 2015)

Court

Labour Court Johannesburg

Case number

JR1513/11

Judge

AH Shene

The Labour Court reviewed and set aside an arbitration award granting protective promotion, finding it unreasonable because the employee lacked the minimum requirements and no damages were proved.

• Unfair Labour Practice
• Promotion Disputes
• Protective Promotion
• Collective Agreement Interpretation
• Protective-promotion
• Promotion-disputes

Govender v South African Police Service and Others (D726/2013)

Govender v South African Police Service and Others (D726/2013) [2015] ZALCD 23 (7 May 2015)

Court

Labour Court Durban

Case number

D726/2013

Judge

Mooki

The SAPS committed an unfair labour practice by failing to consider, evaluate, or provide reasons for the applicant’s non-appointment to post 2607. This conduct was not merely a procedural defect but had a substantive effect, as the applicant was the most meritorious candidate according to uncontested evidence. The Commissioner’s award of compensation was unreasonable given the circumstances and the evidence. The applicant is entitled to protected promotion with retrospective financial benefits, as the SAPS failed to justify its conduct and did not challenge the applicant’s merit. The court i…

Source excerpt

• Unfair Labour Practice
• Protective Promotion
• Failure To Evaluate
• Compensation
• Promotion Policy
• Condonation

Kwadukuza Municipality v Rajamoney and Others (D880/10)

Kwadukuza Municipality v Rajamoney and Others (D880/10) [2013] ZALCD 17 (13 June 2013)

Court

Labour Court Durban

Case number

D880/10

Judge

Cele

The court found no defect in the arbitrator's reasoning or findings. The arbitrator correctly determined that the requirements for the advertised post, specifically the EC driver's license, were material and that only candidates meeting all requirements should have been shortlisted. The applicant's failure to follow its own selection criteria rendered the appointment process unfair. The arbitrator's decision to award protective promotion to the first respondent was reasonable, given the time elapsed and the fact that the fourth respondent should not have been shortlisted. The applicant failed…

Source excerpt

• Unfair Labour Practice
• Protective Promotion
• Recruitment And Selection Policy
• Arbitration Review
• Affirmative Action

City of Tshwane Metropolitan Council v South African Local Government Bargaining Council and Others (JR 593/07)

City of Tshwane Metropolitan Council v South African Local Government Bargaining Council and Others (JR 593/07) [2011] ZALCJHB 154 (26 May 2011)

Court

Labour Court Johannesburg

Case number

JR 593/07

Judge

Lagrange

The Labour Court found that the arbitrator's conclusion of bias and procedural unfairness in the promotion process was supported by the evidence, particularly the unexplained discrepancies in scoring by the interview panel and the lack of a formal employment equity plan. The arbitrator was entitled to determine substantive and procedural fairness, but erred in ordering retrospective appointment without considering the period the post had already been filled. The appropriate remedy was not instatement but compensation for the financial disadvantage suffered by the aggrieved employee. The arbit…

Source excerpt

• Unfair Labour Practice
• Promotion Dispute
• Employment Equity
• Arbitration Review
• Protective Promotion

Gounden v South African Police Services and Others (JR 2364/08)

Gounden v South African Police Services and Others (JR 2364/08) [2011] ZALCJHB 192 (17 January 2011)

Court

Labour Court Johannesburg

Case number

JR 2364/08

Judge

Lagrange

Review of a promotion-related unfair labour practice award. The Labour Court set aside the relief order and remitted the matter for reconsideration on a reconstructed record.

• Unfair Labour Practice
• Promotion
• Procedural Irregularity
• Protective Promotion
• Unfair-labour-practice
• Judicial-review

Gouden v South African Police Services and Others (JR2364/08)

Gouden v South African Police Services and Others (JR2364/08) [2010] ZALCJHB 365 (14 September 2010)

Court

Labour Court Johannesburg

Case number

JR2364/08

Judge

R Lagrange

Labour Court review of a promotion dispute: the award on relief was set aside and remitted because the arbitrator’s findings on substantive unfairness were contradictory.

• Unfair Labour Practice
• Promotion
• Procedural Irregularity
• Protective Promotion
• Unfair-labour-practice
• Procedural-irregularity

Masombuka v Mashiane NO and Others (JR 2619/05)

Masombuka v Mashiane NO and Others (JR 2619/05) [2009] ZALC 16 (3 February 2009)

Court

Labour Court

Case number

JR 2619/05

Judge

Molahlehi

The court found that the applicant failed to provide sufficient evidence to support her claims of procedural and substantive unfairness in the appointment process. The existence of a memorandum recommending her was not proven, and she did not file a replying affidavit to address the respondent's denials. The arbitrator's conclusion that the incumbent possessed an equivalent qualification in IsiNdebele and relevant teaching experience was reasonable. The applicant did not demonstrate that she was more qualified than the incumbent or that the Regional Director improperly interfered with the pro…

Source excerpt

• Protective Promotion
• Review Of Arbitration Award
• Procedural Fairness
• Substantive Fairness
• Onus Of Proof

Minister of Safety and Security v Vos and Others (JR 2222/05)

Minister of Safety and Security v Vos and Others (JR 2222/05) [2007] ZALC 83; (2008) 29 ILJ 688 (LC) (2 November 2007)

Court

Labour Court

Case number

JR 2222/05

Judge

Molahlehi

The commissioner committed a gross irregularity by failing to join the successful candidate, who had a direct and substantial interest in the outcome of the arbitration proceedings. The award affected her rights and interests, including her integrity and right to a fair hearing. The principle of audi alteram partem requires that any person whose rights may be prejudiced by a decision must be afforded an opportunity to be heard. The failure to do so rendered the arbitration proceedings and award irregular and invalid. Consequently, the arbitration award was reviewed and set aside.

Source excerpt

• Unfair Labour Practice
• Promotion Dispute
• Non Joinder
• Protective Promotion

Baxter v National Commissioner Correctional Services and Another (LP198/04)

Baxter v National Commissioner Correctional Services and Another (LP198/04) [2006] ZALC 23; [2006] 9 BLLR 844 (LC); (2006) 27 ILJ 1833 (LC) (19 May 2006)

Court

Labour Court

Case number

LP198/04

Judge

Cele AJ

The court found that the Department of Correctional Services failed to appoint the applicant due to unfair discrimination. The Department's application of its employment equity plan was arbitrary and inconsistent, particularly as the plan favoured the appointment of a Coloured male in the Free State Province, yet the applicant was overlooked. The Commissioner failed to record reasons for not approving the selection committee's recommendation, which constituted a gross irregularity. The evidence demonstrated that differentiation based on race and gender was used in the appointment process, and…

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• Employment Equity Act
• Affirmative Action
• Unfair Discrimination
• Protective Promotion
• Public Service Regulations