What factors are to be taken into account to determine whether or not an offer of alternative employment is lawful, as opposed to fair?
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In the Erasmus judgment [Article 4/2022], the employee rejected the offer of employment for, inter alia, the following reasons: it could not be expected of her to return to work after being treated the way she had been treated by her employer, she feared that she would not be able to cope with the work when returning, the perpetrator was still in a position of power in the municipality and, lastly, the people aligning themselves with the perpetrator indicated their dislike of her.
The high court, in essence, held that the same principles applicable in the labour law environment would also be applicable here within the delictual environment and entailed, amongst other things, that, if the employer created an intolerable environment, it was not lawful to expect the employee to mitigate her losses by returning to such intolerable environment.
It, furthermore, had to be determined whether or not the offer made by the municipality amounted to an impermissible circumvention of its recruitment procedures.
In Khanyile v Minister of Education and Culture, KwaZulu–Natal and Another (2006) 27 ILJ 769 (N), it was held that an appointment contrary to applicable statutory requirements is unlawful – an application of this process requires the following question to be determined: whether the reservation of a post on its organigram for Erasmus, for the purposes of settling a claim for future loss of earnings, contravenes the municipality’s recruitment policies and is, thus, unlawful?
With reference to s195 of the Constitution and s51 and s67 of the Local Government Municipal Systems Act 32 of 2000 (‘the Systems Act’), the municipality in casu sought to ensure fair and proper placement of municipal employees on its organigram by a placement policy and a relocation policy – both having been approved by the council of the municipality.
The following is a summary of such principles applicable to both placement and relocation: (i) posts will first be advertised internally and internal candidates will be given preference; (ii) in exceptional circumstances, where it is critical for service delivery and where specialised skills are required and no suitable internal candidates exist, posts will be advertised externally so that members of the public can apply; (iii) should there be no suitable applicants internally, other applicants may be considered in terms of normal selection/promotion criteria; (iv) approval of external filling of vacancies are to be obtained from the placement committee.
In terms of Khanyile, appointments in contravention of policies would be ultra vires and invalid (a municipality, as organ of state, has no authority to disregard its own policies).
The consequence of unlawful or unfair placement are as follows: (i) an aggrieved external candidate can claim that the appointment was unlawful in terms of PAJA; (ii) an internal candidate could claim that the failure to appoint constitutes an unfair labour practice; (iii) any person with locus standi can apply to have the settlement agreement set aside.
