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IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case No: D2223/18

In the matter between:

RAJESH RANJITH                                                                                   APPLICANT

and

THE KZN PROVINCIAL TREASURY                                       FIRST RESPONDENT

R. MAHARAJ NO                                                                SECOND RESPONDENT

THE GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL                                    THIRD RESPONDENT

W C DONNELLY                                                                  FOURTH RESPONDENT

M M NDUMO                                                                             FIFTH RESPONDENT

 

Heard:  30 June 2021

Delivered:  This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 10h00 on 18 October 2021.

Summary:  Opposed Review

JUDGMENT

NXUSANI, AJ

[1]   This is a review of an Arbitration Award which found that the KwaZulu-Natal Provincial Treasury, the First Respondent did not commit an unfair labour practice by failing to promote him.

[2]   The underlying dispute commenced in June 2011. The Applicant was employed as a Deputy Director within the First Respondent's Municipal Finance Unit and was part of the initial group of employees who worked in the Unit. Over the course of time several employees came into the Unit, and leapfrogged him into senior positions. He realised that there were no promotional prospects within the First Respondent and sought to transfer to the KwaZulu-Natal Department of Co-operative Governance and Traditional Affairs (COGTA). He remained there for a few years and then noticed an advert for three (3) Senior Managers posts in the Municipal Finance Unit. He considered that he met requirements which stated that a Post-graduate Degree in Public Finance or Accounting or a related field in which a Master’s Degree or qualified Chartered Accountant would be an advantage. He also applied because he had been in middle management for a period in excess of the three (3) year requirement sought by the KwaZulu-Natal Provincial Treasury.

[3]   The First Respondent shortlisted some fourteen (14) candidates. It decided to require seven (7) of these candidates, including the Applicant, to undergo a practical assessment to determine their functional expertise. Three (3) types of practical assessments appear to have been envisaged. The first was case studies. Case studies would be used in depicting a holistic portrayal of a candidate's experience and knowledge regarding the functions of the post.

[4]   The second form of practical assessment that was permissible was that of "presentations". In this instance, candidates are given a work related problem or scenario and are required to analyse and present the analysis to the panel in the form of a presentation. The panel would then assess the functional competencies and determine the suitability of the post in question.

[5]   The third type of practical assessment foreshadowed in the recruitment and selection policy was that of written tests or computerised tests. The written tests were designed to refer to a general group of assessments tools where candidates read questions and responded in writing or by making choices on-line or on pre-determined forms. The appropriate questions could include symbols, diagrams, graphs or tables. The Recruitment and Selection Policy provided that knowledge was most typically assessed in a written test format. It indicated that written tests could also be used to assess skills such as analysis, problem solving and written communication. It went on to state that written tests could be efficient where they could be administered to larger numbers of Applicants earlier on in the selection process.

[6]   Although the present selection process commenced in 2011 the parties operated on the assumption that the KwaZulu-Natal Provincial Treasury Recruitment and Selection Policy was in fact operative even though it was only signed on 1 April 2015 by the Head of the Department.

[7]   The allied selection process that was applicable and relied upon by both parties was a "Reviewed Provincial Framework on Recruitment and Selection" which was approved by the Committee of Heads of Department on 13 December 2012 and signed off by the Director-General of the KwaZulu-Natal Provincial Administration.

[8]   Similarly with the Departmental Recruitment and Selection Policy, the parties operated on the premise that the Provincial Policy Framework on Recruitment and Selection was operative at the time when the shortlisting and selection process took place.

[9]   The latter policy stipulated that the principles of selection rested upon 'merit' and the 'job related selection criteria'. Insofar as merit was concerned, the policy stipulated that Provincial Departments were entitled to select the 'best fitting candidate' by utilising 'criteria' relating to 'skills' (defined as acquired and or learnt dexterities); 'experience', specifically focusing on 'previously acquired hands-on pertinent training and exposure'; 'capacity', referring to the 'inherent capacity or potential of an individual to attain a particular level of dexterity to successfully carry out the tasks and expectations'; 'personal attributes' relating to the 'personal character traits an incumbent ought to display as an inherent requirement of the job such as a flair for dealing with people'; 'employment equity and affirmative action'. Job related selection criteria was specified as the 'competencies acquired through past training'; 'training received'; 'learning potential'; 'educational qualifications' which of its own could not determine suitability; 'fairness'; 'equity'; and 'transparency' by demonstrating that the process was fair and transparent in this regard, ensuring easily accessible records to be kept, relating to the 'criteria' used in selecting candidates, the 'points' or 'credits' awarded to each applicant in the fulfilment of the criteria; and, a copy of the advertisement.

[10]   The Provincial Policy also stipulated that the selection methods would be based on one or more structured techniques such as interviews, psychometric testing, in-basket simulation, written tests, review of past accomplishments, assessment centres and reference testing.

[11]   It stipulated that the Shortlisting Committee should insofar as is possible be consistent with the selection of the Interview Committee unless a member died or was no longer in the employ of the public service. It also stipulated that the criteria for shortlisting should be related to the advertisement which in turn should be aligned to the job description and the job evaluation results which had to be approved by the Shortlisting Committee. It stipulated that the shortlisting process should be undertaken in an objective and unbiased manner. The dimensions for key performance areas of the vacant post had to be identified and weighted in terms of importance. The shortlisting was required to be based on competency profiles thereby eliminating candidates who did not qualify.

[12]   There is a dispute between the parties as to whether the practical assessments which the Applicant undertook constitutes a 'competency assessment'. A reading of the KwaZulu-Natal Provincial Treasury Policy on Recruitment and Selection clearly indicates that these are different methods of selection. The Policy stipulates that there are three broad methods of selection. The first comprises practical assessments, the second interviews and the last part comprises competency assessments. Competency assessments are required as one of the means of selection when filling a vacant post from Salary Level 11 and upwards. It is an aid utilised in determining the suitability of candidates in conjunction with other selection techniques but it is not the deciding factor.

[13]   The crisp issue which requires determination is whether the Applicant was unfairly excluded from the interview phase premised on his alleged poor performance in the case studies.

[14]   During the arbitration the First Respondent claimed that a Line Manager would have to prepare a model answer against which each of the candidates were assessed or scored. This was confirmed by the First Respondent's Director for Human Resources, Ms Kogie Chetty.

[15]   Ms Chetty testified that the candidates were given a memory stick and were required to answer the written questions and to save these for evaluating, marking and assessing. She told the Commissioner that the system required a degree of trust in Line Managers and it was expected of them not to manipulate the data to the prejudice of candidates.

[16]   According to Ms Chetty, a model answer would have to be available to ensure that it is marked by all the panel members who would compare it to the model answer.

[17]   When Ms Chetty was confronted in cross-examination with the proposition that the best way of establishing the veracity of the scoring would be to compare it to the model answers, Ms Chetty testified that as far as she could recall the model answers were made available to the Applicant. This of course was hotly disputed. She could not explain however why the model answers were not contained in the bundle of documents produced by the First Respondent. She agreed when Mr Crampton put to her that it would be unfair if it turned out that there was no model answer against which the panellists determined the Applicant's score.

[18]   During re-examination Mr Nkomo, the Senior Legal Advisor for the First Respondent told the Commissioner that the model answers to the written tests were given to the Applicant's former attorney. He represented to the Commissioner that he was in possession of the model answers and that the only reason why these were never included in the First Respondent's bundles was because the First Respondent did not consider them relevant. Mr Crampton told the Commissioner that the model answers were not handed over to the Applicant's former attorneys at a time when he was representing the Applicant and sought true copies thereof.

[19]   The First Respondent then called the Convenor of the panel and the Line Manager, Mr Farhad Cassimjee. He was the Chief Director for Municipal Finance. He testified that the first part of the case study which was given to the seven (7) candidates, dealt with the ability of candidates to develop an approach to a stated problem; undertake certain calculations; to determine what the interpretation would be and to provide commentary. It was referred to as the 'nThebush Municipality". He testified that the second part of the case study centred on an article titled "The Strategy that wouldn't Travel". In presenting this written test, the First Respondent wanted to ascertain whether candidates were able to identify the problems that occurred in the case study and, using their experience and knowledge, to ascertain whether they were able to propose a solution to the case study. This case study was contained in a Harvard Business Review which he downloaded from the internet.

[20]   Mr Cassimjee testified that the Fourth and Fifth Respondents scored 84% and 58% respectively whilst the Applicant scored 49%. On the second part of the case study the Second Respondent scored 30% and the Fifth Respondent scored 40%. He stated that the Applicant scored 30%.

[21]   Of the candidates it was only the Fourth, the Fifth Respondents and one Mr Mzulwini who were ultimately invited to attend the interviews and were recommended for appointment or promotion.

[22]   During his cross-examination, Mr Cassimjee was pointedly asked whether the model answer or written guide that was used to assess and mark the candidates was in writing and available. He was asked to explain why over several years, the model answer or written guide was not made available to the Applicant. He testified that he couldn't explain this and referred to Ms Chetty's assertions that these were provided to the Applicant's previous attorney. His retort was that he "could show" the model answer or guide to Mr Crampton. He also like, Ms Chetty stated that he assumed that the document was made available. He was also asked whether he was the person who primarily scored the marking and sought to deny this. The documents show otherwise.

[23]   He was asked to explain the manner in which the scores were effected. This occurred digitally. The moderators, made their inputs after Cassimjee typed his commentary and the score onto the soft copy answers.

[24]   The First Respondent only provided the score sheets of one Mzulwini, a Mr Barend, the Fourth and Fifth Respondents together with those of the Applicant. The remaining scores were either redacted or were not produced in the evidence before the Commissioner. The documents show the case study results of thirteen (13) candidates who were required to undergo the practical assessment. In the analysis of the financial viability of the "nThebush Municipality", the examiner appears to have, in bullet form brought onto the work-up, certain commentary and a mark. The commentary for Mr Mzulwini is not legible in respect of the exercise of the financial viability of the "nThebush Municipality". In respect of the second test, the First Respondent ultimately produced the answer brought onto the disc by Mzulwini. The marker noted "a very good analysis with steps to identify the real problems, work out a solution with the employees and having had their buy-in, monitor the implementation. Well done." He was given a score of eighty (80) out of one hundred (100).

[25]   In the case of the Fourth Respondent, the remarks appeared to be perfunctory and bear no correlation to how the excel exercise was scored. Under "marks" the marker indicated the following in the bullets brought onto the exercise.

·       "All percentages are related to the totals not always used."

·       "Demonstrates a good understanding of a Municipality operations."

·       "The fact that 'bulk purchases increases while income service charges decreases, has been picked up."

·       "The depreciation figure is questionable given the levy (sic) capital expenditure. Comments on increase or decrease from the previous year is insufficient. The final inscription was a good analysis with the exception of the above couple of points. The first mark was twenty (20) out of twenty five (25)."

[26]   The second part dealing with consumer debts contains the following comments in bullet form:

·       "Good point. However, it appears that the categorisation is faulty and should be questioned."

[27]   The mark given for this analysis is twelve (12) out of fifteen (15) and the marker noted 'the reasonableness of the figures should be questioned'.

[28]   The third aspect of the exercise related to capital expenditure. The comments brought by the marker are:-

·       "Good point about using Council funds to pay for capital expenditure. Ask the question, why is it so since the Municipality has all those unspent grants."

[29]   Donnelly was given a score of twelve (12) out of fifteen (15). The scorer typed "again the validity of the figures should be questioned. The Municipality incurred losses, has no funds … back conditional grants. How fund such high expenditure in 2008/09" (sic). The marker gave Donnelly for the part dealing with salaries and allowances, a total of five (5) out of five (5). The answer for the workout in respect of cash flow was marked at fifteen (15) out of fifteen (15). There were no explanations for these marks. The last part of the ratio analysis contains the following commentary. "This indicator shows whether the Municipality is perfectly in line with the budget. An underperformance i.e. a percentage less than hundred (100) which is not matched by a reduction in the expenditure implementation indicator … to problems. This is confirmed by the continuing losses the Municipality is incurring. It will ultimately lead to cash flow problems but is not reflective of low collection rates". For this the Fourth Respondent was allocated twenty (20) marks out of twenty five (25). His total score was thus eighty four (84) out of a hundred (100).

[30]   In marking Donnelly's second question relating to the case study the marker stated "the answer is presented with a good structure. However the problem "stated above" is the one that relates to the Wichita site and not the one at Lubbock which is where Jimenez is having difficulty finding a solution to. The problems related to the lack of enthusiasm amongst the workers at Lubbock to find a solution; the expectation that success at Wichita can be replicated; and the unavailability of David Keller to spearhead the intervention. The issues surrounding the attempted solution by Jimenez at Lubbock have not been recognised. The issues relate to, Jimenez not having a handle on the reason for the problem, not recognising the people element in finding a solution, insufficient interaction on a person to person basis etc. Without identifying these, it will not be possible to find suitable solutions. Proposed solutions are those that were implemented at Wichita, recycled." He was allocated a score of thirty (30) out of a hundred (100).

[31]   The First Respondent also produced the results of the Fifth Respondent. The marker indicated in the portion dealing with financial viability that "percentages are for year on year increases or decreases. How meaningful are they." The remarks adjacent to the comments column is in bullet form and states "analysis concentrates on variances rather than on interpreting the figures on what the impact is on the future viability of the organisation". He was given a score of five (5) out of twenty five (25) for this portion. The comments brought in the analysis of consumer debtors, was "analysis concentrates on variances". "Better, analysis on the impact of poor collections than debtors". He was given a score of ten (10) out of fifteen (15). In relation to capital expenditure, the marker noted "good point well checked" "good point well analysed" and gave him a score of twelve (12) out of fifteen (15). In relation to salaries and allowances, there was no commentary. He was given a score of four (4) out of fifteen (15). For cash flow, the marker recorded as follows:

''This is a balance not cash flow and it's overdrawn."

Elsewhere the marker repeated that the points made by the Fifth Respondent in his comments of the cash flow, were "good'. He was allocated a score of twelve (12) out of fifteen (15).

[32]   The last portion dealt with ratio analysis. Ndumo's comments were noted by the marker as:-

·       "Correct or without reducing expenditure."

·       "This is a relationship ratio. Capital expenditure is not expected to be covered by operating expenditure".

[33]   The marker also indicated that "the budget implementation indicators must be viewed together in relation to one another". In respect of the last commentary on liquidity, the marker indicated that the comments were "correct". For this, he scored fifteen (15) out of twenty five (25). He was allocated a total mark of fifty eight (58) out of a hundred (100).

[34]   In marking Ndumo's case study, the marker concluded that "other than for consultative problem solving the rest of the solution is very general in nature. There are specific issues that need to be dealt with. E.g. (sic) the "reason" for the problem, inadequate commitment by the shared services department, lack of a David Keller to take the project forward, one solution does not fit all, the project's success being measured in terms of total time between investment rather than trying to understand the problem etc etc. Also where is the solution to reducing costs. Presentation is not up to standard." The marker scored this forty (40) out of a hundred (100).

[35]   The commentary brought in respect of the Applicant is much more extensive. The commentaries are not entirely legible. In relation to the case study, the marker brought about extensive comments to justify the mark of thirty (30) out of a hundred (100). The marker stated "Initially the problems and issues have not been sufficiently clearly identified (see note 4 in above)".

"The thrust of the proposed solutions (problems, chats, games etc.) have the same flavour as those at Wichita. They have been tried at Lubbock and have not succeeded and that is where the problem lies. A different approach is probably needed. Jimenez looked at the success of the project in terms of a "total time to investment". Did she view it as a "people problem". Probably not. To win their confidence she would be well served … [illegible] of the project. To claim the purpose, the reasons for undertaking it and the benefits that will flow through to work. Where the company’s intention previously was to divest itself of the site, it is now trying to improve it so it becomes an efficient part of the company’s operations. If she can get a commitment from ACME that the intention is to keep the site as part of the company, she should share that with them. Security for employees".

"Being open and transparent generally engenders trust and this trust leads to participation. This should therefore be the primary end of Jimenez. Understand the reasons for the problems. Then develop the solution with the participation of the workers, thereby making it their solution. Set small milestones and celebrate each success together. Make it as inclusive as possible. Present this plan to senior management with different timelines etc etc. The presentation above tends to recycle the same concept [problem chats, SPITS, softball games etc.] that were used at Wichita with success and failed at Lubbock. The thinking should have been directed towards coming up with a fresh approach."

[36]   I have brought the markings into my judgment in order to demonstrate that the questions and the way it was marked can only be confirmed against a proforma answer. If these did not exist, the marking and allocation of scores would be random, uncertain and in breach of the First Respondent’s requirements. There is some evidence of subjectivity in the disparate answers.

[37]   After the appointments, the Applicant asked for access to the documents used in the selection process. These were denied. The Applicant then had to institute proceedings in the CCMA. He was granted an award in May 2012 and the First Respondent was required to furnish the requested documents. This did not deter the First Respondent. It brought a review against the award. It then withdrew the review and undertook to provide the documents by 12 June 2015.

[38]   The Commissioner found that the issue that he was required to determine was whether the failure of the First Respondent to appoint the Applicant into the senior management position constituted unfair conduct as contemplated in section 186(2)(b) of the Labour Relations Act. In her analysis of the evidence, the Commissioner stated that the fact that the Applicant was more qualified and had an impressive academic track record, and possessed superior qualifications was not of itself, sufficient to lay a basis for an unfair labour practice claim. Apart from disagreeing with the assertions made by the Applicant, the Second Respondent does not appear to have been alive to whether the First Respondent produced and relied upon model answers or a guide to the questions against which each of the candidates were scored. It is this elementary misunderstanding which led the Commissioner to reach the defective decision. The Commissioner should have, in the light of the evidence, required the First Respondent to produce the documents that were sought and to test Cassimjee on the answers that he brought onto the scripts. Had he done so it would have been evident that the First Respondent did not in fact have a model answer or a guide. This would have called the entire practical assessments into question.

[39]   The Commissioner concluded that after the Applicant failed the case study, his quest for promotion halted. He concluded that an incumbent did not have an automatic right to promotion and the decision not to promote should be exercised in a manner that did not amount to an unfair labour practice. She concluded that there was nothing presented in the evidence that would lead her to conclude that the First Respondent had acted in bad faith when deciding not to promote the Applicant.

[40]   The First Respondent put up a catalogue of denials in the review. In its answering Affidavit, the First Respondent described the Applicant as "arrogant", trying to "introduce the merits of the matter via the back door proceedings", and making "untruthful and misleading allegations". It skirted the issue of the model answers or the guide. In answer to the assertion that the model answers were never produced even though the CCMA and the High Court ordered the First Respondent to produce the model answers, the First Respondent answered that these allegations "did not make any sense". It accused the Applicant of "trying to abuse Court processes". It suggested that the Applicant was "avoiding to deal with the fact that he failed after being shortlisted to do 'case study' (sic)."

[41]   When the parties argued the matter before me I asked Counsel for the First Respondent where the Court would be able to find true copies of the model answers. I stood the matter down for Counsel to consult with Mr Nkomo, the deponent to the First Respondent’s Answering Affidavit and its representative in the arbitration. Counsel for the First Respondent informed me that the First Respondent never prepared any model answers, that the questions were not marked against a model question answer and that these were not available to the Court. This was a startling revelation.

[42]   Confronted with this difficulty, the First Respondent's Counsel submitted that he was in no position to advance any meaningful submissions. Counsel for the First Respondent conceded that if the First Respondent had not prepared any model answers to the questions then on the evidence of Ms Chetty, the Director for Human Resources, the First Respondent would have acted unfairly towards the Applicant.

[43]   For the reasons mentioned hereinbefore I am satisfied that the Arbitration Award falls to be set aside. However, given the fact that it is uncertain how the Applicant would have fared in an interview, it is not appropriate to replace the Arbitration Award with one promoting him to the position. The added difficulty is of course that this process occurred in 2011. There were also numerous delays, largely occasioned by the First Respondent. It would however not be fair and equitable to leave him without an effective remedy.

[44]   I asked the parties to provide additional Supplementary Heads of Argument in the light of the First Respondent's concession that it did not prepare models answers nor use the model answers to mark the scripts. The First Respondent did not make any further submissions. The Applicant contended that the First Respondent had made itself guilty of blameworthy delays and that 'had it acted fairly and honest in making this revelation without delay, the Applicant might have been entitled to reinstatement or a protected promotion'. It accused the First Respondent of "dishonest conduct", of unnecessarily "amplifying the issues", of "behaving in an unnecessarily aggressive manner" when confronted with the request for the documentation. He sought a punitive costs order.

[45]   The Applicant sought relief that was foreshadowed in the Minister of Safety and Security[1] matter. The facts in the Minister of Safety and Security matter are distinguishable from the present. That defective Award arose from the conduct of the employer who allowed one of the interviewees to act as a secretary when it conducted interviews for other posts thus affording him sight of the applications of other candidates. The employee also obtained the questions that were put to other candidates to which he was not entitled. It is in my judgment preferable to follow the approach of Lalie J in the Esterhuizen[2] judgment.   

[46]   The Applicant also exhorted me to grant compensation which would constitute the difference between the remuneration that he actually earned and which he would have earned if he had been promoted. The Applicant asked me to do so in line with the judgments of this Court in the case of The City of Tshwane Metropolitan Council[3], [4].

[47]   This type of compensation would be permissible in the peculiar circumstances of the cases that the Applicant relied upon. In both those cases the employees were interviewed and but were improperly and unfairly overlooked for promotion or appointment. Those facts are therefore distinguishable to the facts in this matter.

[48]   The Applicant also sought an award of compensation in the form of a solatium for the unfairness that he has had to suffer. There were no submissions advanced in this regard. The Applicant has not laid a factual basis for the solatium sought.

[49]   In considering whether it is appropriate for me to replace the decision of the Commissioner with one appointing or promoting the Applicant to the post, I believe that I would be effectively stepping into the dark. It was suggested to me that the posts were still on the First Respondent's organogram and that one of the posts was vacant. However, I would have to overlook the prescribed requirements of the SMS Handbook which stipulate for interviews. I do not have any information to conclude that the conduct of the First Respondent was the immediate and direct result of the failure to promote him. He might have failed at the interview. It is simply unknowable.

[50]   In addition I would have to effectively bypass the directive on the implementation of competency based assessments for members of the senior management service in the public service. It provides that following the interview process the two most suitable candidates must be invited for a competency assessment.

[51]   I am satisfied that it is just and equitable in all of the aforegoing circumstances to award the Applicant the maximum compensation permissible in terms of section 194(4) of the Labour Relations Act.

[52]   I am mindful of the approach to the grant of costs in labour matters which was stated in Dorkin[5] and Zungu[6]. The Constitutional Court has, in its most recent decision,[7] reminded this Court that costs do not automatically follow the result in labour matters. An important consideration is what is contained in section 162(2)(b) of the Labour Relations Act. It requires this Court to have regard to the conduct of the parties in defending the matter and their conduct during the proceedings before the Court.  

[53]   The First Respondent utilised several strategies to thwart the timely conclusion of the dispute. It first refused to give documents, then opposed proceedings in the CCMA ordering it to deliver the full records. When that failed it sought to review the decision of the CCMA. It was thereafter constrained to withdraw the review after giving an undertaking to provide the records. It did not comply with the Order of the Labour Court.

[54]   During the arbitration the First Respondent misled the Arbitrator. The Line Manager, Mr Cassimjee even suggested during cross-examination that he could provide the model answers or "guide" as he preferred to describe the documents. This type of behaviour is unconscionable and inconsistent with the constitutional duties of Organs of State when they are litigating in a matter regulated by the Constitution and the enabling legislation, the Labour Relations Act. It has a duty to act fairly, properly and to uphold the basic values enshrined in the Constitution.

[55]   The First Respondent did not make any further submissions notwithstanding my invitation to it. It has not provided an explanation for the misconduct.

[56]   It is particularly alarming that a Legal Advisor should misrepresent to a Commissioner that the model answers were in his possession and would be made available to the Applicant's legal representative. One would have expected the First Respondent's Legal Advisor to react immediately and timeously to the complaint that the model answers were not in fact in the pack of documents and to make those enquiries; to lay his hands on the appropriate documents; and, if he was unable to do so, to provide a proper explanation to the Commissioner.

[57]   The First Respondent's Legal Advisor went further and deposed to an Affidavit in which he made scurrilous and unnecessary assertions, all of which sought to undermine the integrity of the Applicant. This was not necessary. This was the second opportunity for the First Respondent's Legal Advisor to reflect on the fact that the First Respondent did not utilise any model answers. Yet, there was no disclosure.

[58]   It was only when the Court asked the First Respondent's legal representative to identify the model answers in the documents that it had produced, that the truth emerged. This behaviour is subversive of the Labour Relations Act and section 34 of the Constitution which enshrines the right to have one's dispute resolved by the application of law in a fair public hearing before a Court.[8]

[59]   Is it fair for the Applicant to have been stymied by the First Respondent and put to the expense of having to pay for the legal expenses of his legal representatives? I do not believe that this is fair and just. Contrasted to this, is the fact that the officials of the First Respondent utilised the considerable financial might and weaponry of the State to achieve an unjust result.

[60]   The Applicant is gainfully employed in the Provincial COGTA Department. He has been denied the possibility of being promoted and achieving higher earnings. The salary package attaching to that post would have been R685 200.00 in 2011. He will thus suffer financially if the conduct of the First Respondent is not remedied with an appropriate costs order.

[61]   In my view this is an appropriate case to depart from the normal rule that costs should follow the result. There are significant and impactful justifications which require that the Applicant not only be granted costs on a party and party scale but costs on a scale that would do justice to the expenses that he has had to incur. The only way that these can be properly ameliorated and to show the Court's serious disapproval of the conduct of the First Respondent, is to order that the First Respondent pay the costs on the scale as between attorney and client.

ORDER

1.      The arbitration of the Second is set aside and replaced with an order that the First Respondent committed an unfair labour practice.

2.      The First Respondent is ordered to compensate the Applicant by paying the equivalent of 12 months' salary that was applicable to the post when it advertised it.

3.      The First Respondent is ordered to pay the costs of the review on the scale as between attorney and client.

It is so ordered.

J. NXUSANI, AJ

 

DATE: 2021-10-18

 

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