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21 Indus. L.J. (Juta) 1653 (2000)
Ndlovu v Commission for Conciliation, Mediation & (and) Arbitration & (and) Others

handle is hein.journals/iljuta21 and id is 1759 raw text is: NDLOVU v COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION & OTHERS LABOUR COURT (D544/99) A Judgment undated WALLIS AJ CCMA-Arbitration proceedings-Review of proceedings, decision and awards B of commissioners-Manifest that rational objective basis existed connecting evidential material before commissioner and decision at which he arrived-No basis on which court could interfere with award. Unfair labour practice-Residual-Item 2(1)(b) of schedule 7 to LRA 1995- Failure to promote public service employee-To establish unfairness not C sufficient for complainant to say that he or she was qualified for post-Must also show that decision to appoint someone else was unfair. The applicant, an employee of the Department of Social Welfare & Population Development, was aggrieved that he did not receive the promotion that he D believed to be due to him. He referred a dispute to the CCMA in terms of item 2(1)(b) of schedule 7 to the LRA 1995 alleging unfair conduct by the employer relating to his promotion. A commissioner of the CCMA found that the department had not committed an unfair labour practice, and dismissed the application. The employee made application to the Labour E Court to set aside that award and to replace it by an order directing the department to promote the employee to the position of director. Applying the test laid down in Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC) the court examined whether there was a rational objective basis justifying the connection made by the commissioner between the material properly available to him and the conclusion arrived at in the form F of his award. It was apparent from the employee's statement that on a number of occasions the employee was not promoted in circumstances where the persons who were appointed in his view lacked his qualifications and abilities, and his length of service. The court commented that the latest of these related to an application G made in 1995, and that the complaint therefore arose before the LRA 1995 came into force. However, the commissioner had clearly addressed his mind to that complaint, and the court accepted that that was the most favourable approach to the application papers, from the employee's point of view. The commissioner in his award had asked whether the employee was entitled to a senior position and, if so, did he stand head and shoulders above everyone else H who was so qualified? He found that there was no evidence that the answers should be in the affirmative, and suggested that his clamour for a senior post was intended to justify a demand for a more generous severance package. In the court's view these questions were wholly justifiable in relation to a dispute over promotion. It could never be sufficient for the complainant to say that I he or she was qualified for the post. The next hurdle was to show that the decision to appoint someone else was unfair. That would almost invariably involve comparing the qualities of the two candidates. On the papers that question had been hardly canvassed. The court also regarded the commissioner's comments concerning the severance package to be justifiable. As stressed in the Carephone case it was not open to the court to substitute its view J 1653

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