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Case-Law & Legislation Review: Grievance/Unfair Labour Practice Failure to appoint, promote, re-instate or re-employ

By Gary Watkins who can be contacted at www.caselaw.co.za   ; www.workinfo.com  

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Koopman And City Of Cape Town

Case No: WE7485-01

Award Date: 19 February 2005

Jurisdiction: CCMA: Cape Town

Commissioner: DIK Wilson

# SUBJECT: Grievance/Unfair Labour PracticeFailure to appoint, promote, re-instate or re-employ

ISSUE:  The employee could not have been demoted as he had never been formally placed in the position; his appointment was conditional on the outcome of appeals.  Employee could not have had a legitimate expectation of appointment and the employer followed a fair procedure in dealing with him.  The application was dismissed.

SUMMARY OF FACTS:  The employee was employed by the employer as a Driver. During the course of the process of amalgamation of various municipalities into a single body, the employee acted in the new / revised position of Transport Co-ordinator / Yard Foreman. When this position was eventually advertised, the employee applied and, after interviews were conducted in which the employee achieved the highest score, he was informed that he was the successful candidate. Subsequent to this, one of the other candidates appealed against the appointment of the employee on the grounds that he did not fulfil the requirements of the job. This appeal was successful, and the employee was returned to his previous position as a Driver. Employee claimed that there was no appeal process applicable to this type of dispute, and that the appeal should not have been entertained.  The employee’s highest qualification was standard 3 and the employer was aware of this when he applied for the position.  One of the unsuccessful employees for the position, Mr. Eaton, appealed against the employee’s appointment on the grounds that he did not have the necessary literacy and managerial skills for the position.  The advertisement for the job did not have any formal literacy requirement.  The employee argued that this appeal should not have been allowed, as there had been an appeal process in place only in respect of employees who were not happy with their own placements after the amalgamation of the various municipalities.  The parties agreed that the only issue for the Commissioner to decide was of the appeal should have been allowed and the process was fair.

SUMMARY OF JUDGEMENT:  With regard to the policies regarding appeals against placements in the new structure, the Commissioner found that the procedures clearly envisaged the possibility of an appeal in the case of a competitive placement, that is, where there were competing employees for a placement vacancy. This would include an appeal by an unsuccessful candidate.  Therefore the appeal by Mr Eaton was in fact one which was envisaged by the procedure, and was correctly accepted as such. The employee alleged in the alternative that he had been unfairly demoted, or that the employer had unfairly failed to promote him.  In this regard, the Commissioner found that the employee had not been formally placed in the position. At best this could be regarded as a provisional placement, subject to appeals, as he was never informed in writing of his placement in the position. Since he was not placed in the position, he could not have been demoted.  Regarding the alleged failure to promote the employee, the Commissioner found that the employer acted fairly in allowing the appeal of Mr Eaton to take place. The employee was given the opportunity to give his input at the appeal. The employer then went to the lengths of arranging a literacy assessment for the employee, which appeared to bear out the grounds of Mr Eaton’s appeal. On this basis the Commissioner found that the employer did not act unfairly in this regard either.  This is borne out by the fact that neither of the unsuccessful applicants who had a lower score than the employee were appointed in the post, but looked elsewhere for another, more suitable candidate.  Since the process required a written appointment, and provided for an appeal process prior to finalisation of an appointment, the Commissioner found that the employee could not have had a legitimate expectation of appointment prior to the finalisation of the appeal process and the confirmation in writing of his placement and that the employer followed a fair procedure in dealing with the employee, and has not committed an unfair labour practice.  The application was dismissed and the Commissioner ordered that the employee be paid an acting allowance for the period during which he was acting in the post.

 

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