Grievance/ (Residual) Unfair Labour Practices

Baxter v National Commissioner, Correctional Services & another –

(2006) 15 LC 6.9.3
Subject matter classification:

grievance/ (residual) unfair labour practices - failure to appoint, promote, reinstate or re-employ - discrimination - race - employee overlooked for promotion - incorrect statistics relating to employer’s employment equity plan



Mini Summary:

The applicant, a “Coloured” male provincial inspector with the rank of Deputy Director, was one of nine candidates interviewed for a vacant post of Area Manager. After the interviews, the applicant was recommended for appointment. However, the recommendation was turned down on the basis that it did not advance the department’s employment equity objectives. The position was re-advertised, and a Black male was appointed. The successful candidate was subsequently transferred to another post, and another officer transferred to the post in question without promotion. After a request for the record of the interview in terms of the Promotion of Access to Information Act 2 of 2000, the applicant was informed that he “did not possess suitable qualifications and experience in comparison with the other candidates who were recommended for appointment” and that his appointment would not “address the Department’s Equity Target”. The applicant contended that he was the victim of unfair discrimination because, had he been appointed, he would have been the only “coloured” Director in the province concerned, the other senior posts being filled by Black males and one Black female.



The Court noted that the Public Services Regulations, 1999 provide, inter alia, that selection committees should make recommendations on the suitability of candidates after considering stipulated criteria. When an executing authority does not approve a recommendation, he is required to record the reasons for the decision in writing. The evidence indicated that the only document used by the selection committee and the commissioner was a pro forma memorandum. The last entry in the memorandum required the commissioner to endorse whether he approved or did not approve the appointment of the candidate concerned. In the case of some of the candidates, the commissioner had cancelled the notation “not approved”. However, in the applicant’s case, the commissioner had done neither. Had the commissioner disapproved the recommendation that the applicant be appointed, he was required to record the reason for his decision. He had not done this either. Since the regulation requiring the commissioner to give reasons is cast in peremptory terms, the commissioner had no discretion to decide not to give reasons. His failure to do so constituted a gross irregularity.



The Court held further that the commissioner’s request to the Department’s equity officer to motivate deviation from the equity plan meant that his decision depended on the answer he received, which had to relate to the equity plan of the province. The equity officer had based her answer on the national plan. This meant that the applicant had established a prima facie case of discrimination based on gender and race. Reliance on the incorrect statistics rendered the decision not to appoint the applicant unfair and arbitrary.



The Court held further that the reasons ultimately given by the respondents for the decision not to appoint the applicant contradicted the recommendations of the selection committee. The evidence as a whole was therefore sufficient to prove that the decision not to appoint the applicant was based on unfair discrimination.



Turning to relief, the Court accordingly ordered the respondents to ensure that the applicant received the salary and benefits to which he would have been entitled had he been appointed to the post, with interest.

Industrial Action

SATAWU v Natro Freight (Pty) Ltd –

(2006) 15 LC 9.6.3
Subject matter classification:

industrial action - unprotected industrial action - union failing to serve referral of dispute on employer - unilateral change of terms and conditions of employment - calling members out on strike before certificate of outcome issued - strike unprotected



Mini Summary:

After having secured a major contract requiring a seven-day week operation, the respondent company announced a change of working hours for drivers and general assistants. The applicant referred simultaneous disputes concerning a unilateral change to terms and conditions of employment and a “matter of mutual interest” to the National Bargaining Council for the Road Freight Industry. After the respondent announced that it intended unilaterally imposing new hours of work, the parties continued negotiating. However, the applicant’s members ultimately embarked on a strike. Management issued two ultimatums, then summoned the strikers to attend individual disciplinary inquiries. The applicant union sought an order inter alia declaring the strike protected and restraining the applicant from dismissing its members.



The Court noted that the union relied upon section 64(5) of the Labour Relations Act 66 of 1995 (“LRA”) in support of its contention that the strike was protected. That section requires an employer to restore changes to terms and conditions of employment within 48 hours of service of a strike notice coupled with a demand to restore the status quo. It was common cause that the union had referred a dispute to the bargaining council. However, the respondent denied that it had received the referral. The onus of proving proper service rested on the applicant. The union’s contention that the respondent must have received the referral on the same day as the matter was referred to the council was not the only reasonable inference to be drawn from the facts.



The Court also rejected the applicant’s claim that, at the latest, the respondent would have been informed of the dispute at the conciliation meeting the following day. Apart from the fact that the respondent denied having been informed of the dispute relating to a unilateral change to terms and conditions at that conciliation meeting, the applicant could not rely on the this point because the LRA requires an employer to restore the original terms and conditions of employment within 48 hours of the time notice is served on it. The applicant could not therefore claim that it acquired the right to strike immediately by virtue of section 64(3)(c), because the respondent had failed to restore its members’ terms and conditions. That being the case, the requirements set by section 64(1) applied. Since the council had not issued a certificate of outcome, the strike was accordingly unprotected. The applicant had accordingly failed to make out a case for the relief sought.

The application was dismissed with costs.

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