The George Municipality’s Labour Court bid to have a now-retired employee’s appointment declared lawful following an arbitration sanction has been dismissed when the court upheld that the appointment flouted fair labour practice.
This was after the municipality appointed a woman as a Human Resources manager in 2015 without having the minimum qualification requirement. A commissioner of the South African Local Government Bargaining Council found that the municipality committed an unfair labour practice in shortlisting and appointing the woman without the NQF Level 7 qualification.
This prejudiced two other employees who applied for the same position and held the required qualification but ranked lower in the interviewing process.
The employee has since retired.
The municipality sought the arbitration sanction to be reviewed and set aside, and for it to be heard afresh before a new commissioner.
It was in 2019, during an audit of the municipality’s Human Resources Department, that the two employees who held the qualification became aware that their now-former colleague did not have an NQF level 7 qualification when she was appointed, as she was missing one subject for her qualification.
Acting Judge of the Labour Court, Glen Cassells, noted in his judgment that no condition was stipulated in the woman’s appointment letter that she was required to obtain the qualification within a reasonable time.
The arbitration award noted that the municipality, as a local authority, is expected to comply with the requirements stated in the advertisement and that if the provisions existed to accommodate a candidate who otherwise did not meet the minimum requirements of the advertisement, this should be recorded in all relevant documentation.
“The arbitration award notes that (the former) employee had a national diploma in library and information services and that her highest incomplete qualification related to post school education, and that accordingly it would have been reasonable to frown upon choosing her, as the qualification stipulated in the advertisement was relevant to the position and deviating from it to accommodate a qualification not close to the position was problematic.
“The arbitrator concluded that the shortlisting committee and the Municipal Manager would have acted differently if they knew that she did not possess the minimum qualification… In the circumstances, she should not have been shortlisted and accordingly not appointed into the advertised position, and by allowing her to be part of the process and to be appointed under the circumstances amounted to an unfair labour practice as it was based upon a wrong principle,” said Cassells.
Municipality spokesperson, Ntobeko Mangqwengqwe, said: “The George Municipality notes the recent Labour Court outcome. As a matter of policy, the municipality does not comment on internal employee-related matters in the media. We, therefore, reserve comment on the judgment.”
