The Commissioner awarded the employee compensation in the amount of R89 324.00 with interest if not paid by 31 January 2021.
In reviewing an arbitration award, the Labour Court last week stood by a South African Local Government Bargaining Council (SALGBC) appointed Commissioner’s decision that the City committed unfair labour practice after it “erroneously” shortlisted a candidate and subsequently reversed its decision during the selection process.
The City, which sought to defend its employment practices, identified a candidate in 2020 deemed suitable for a specific role but later opted to retract that decision.
The Commissioner found that the employee – who was initially not shortlisted – was subjected to unfair labour practice relating to promotion by not being shortlisted for the position of Senior Professional Officer (PSO) advertised by the City in September 2020.
The Commissioner awarded the employee compensation in the amount of R89 324.00 with interest if not paid by 31 January 2021.
City spokesperson, Luthando Tyhalibongo, said the employee is still employed by the City, but did not confirm whether compensation has been provided. “The City notes the judgment. We are still studying the judgment and will consider our options. The City only received the judgment on December 6,” said Tyhalibongo.
Enquiries to the employee’s union organisation were not answered by deadline on Monday.
According to submissions made in their review application, the City challenged the Commissioner’s decision, citing that there “was no evidence” that could lead to the arbitration decision and award.
“Both external and internal candidates were invited to apply prior to the closing date, being October 2, 2020.
(The employee) had been employed by the City in terms whereof she occupied a number of positions over time. Prior to making her application for the position of Senior Professional Officer, the employee was employed by the City as a Professional Officer in the Water and Sanitation Department. “A total of 79 applications were received in response to the advertisement for the position of PSO. Only seven candidates were shortlisted for the position. (The employee) was not shortlisted, which gave rise to a dispute between the parties,” the judgment read.
The City argued that it has a discretion to add additional criteria when shortlisting applicants for the post.
The City contended that there were factors which resulted in the employee not being shortlisted for the post, including that her qualification did not fit within facilities management, she lacked the relevant managerial experience in facilities management, her documentation was lacking, and she lacked financial management experience.
Acting Judge Reynaud Daniels said: “The City further contends that the comparison to other candidates is inconsequential and wrong in light of the knockout factors and the fact that (two other applicants also in the employ of the City) were (not) appointed to the post “I agree with the submissions advanced that she was an eligible employee, who was denied a fair opportunity to compete for the promotional post as different criteria were applied to the candidates in determining who made it into the shortlist.
“I have already dealt with the inconsistency and irrationality in the manner the said criteria was applied in shortlisting candidates...In light of the above test for review and threshold in an unfair labour practice dispute related to promotion, I find that the Commissioner’s decision falls within a band of reasonableness and passes the review test,” said Daniels.
Cape Times