Article 56/2022

The labour appeal court recently, in Department of Rural Development and Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council and Others (2020) 31 SALLR 150 (LAC); (2020) 41 ILJ 1321 (LAC), confirmed that, in respect of the non-promotion of an employee, interference by an arbitrator or the court is limited to very specific circumstances.  On what basis did the court make such a finding?

In the scenario where a preferred candidate for promotion did not take up the offer and the second best candidate was not so appointed, what are the considerations justifying the appointment and instatement into such post in respect of the second best candidate, as opposed to being awarded compensation?

Generally, there is no right to promotion and arbitrators and courts should hesitate before appointing an aggrieved employee to a post.  On what basis did the labour appeal court recently find that such deference would be less compelling where the employer has unfairly discriminated against the employee or acted otherwise egregiously?

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Murphy AJA (with Davis JA and Sutherland JA concurring), adopted the following approach in Department of Rural Development and Agrarian Reform (supra) in dealing with the above issues:

  • a decision on the merits of an unfair labour practice dispute stands to be reviewed in the light of whether it is one that no reasonable commissioner could reach.  The essential question for determination in this appeal, therefore, was whether the arbitrator’s finding, that the department’s omission to promote Musisi had been unfair and his deeming it reasonable to order the promotion, had been unreasonable
  • the department’s contention that restraint and deference were called for was not entirely misplaced, though somewhat overstated in the context of this case.  Courts and arbitrators should be reluctant to interfere with an employer’s decision to refuse promotion.  They will do so only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration, or the decision was arbitrary, capricious or unfair, or the employer failed to apply its mind to the promotion or acted in bad faith (SA Police Service v Safety and Security Sectoral Bargaining Council and Others [2016] JOL 35883 (LC), at paragraph 41.3)
  • but equally, where there is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified.  Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post.  Such deference, however, will be less compelling where the employer has unfairly discriminated against an employee or acted otherwise egregiously.  Likewise, the remedy of instatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the employee proves that, but for the unfair conduct, he or she would have been appointed
  • in conclusion, the labour appeal court found that there was no basis for the labour court to interfere with the arbitrator’s finding and he had not erred in this regard – the aggrieved employee had been the only candidate eligible and suitable for appointment

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.