NOT BEING APPOINTED – WHAT IS THE RECOURSE?

In the case of Mashaba v University of Johannesburg and Others (JA 140/2021) [2022] ZALAC 116; (2023) 44 ILJ 156 (LAC); [2023] 2 BLLR 119 (LAC) the employer advertised the position of Senior Coordinator in a newly created division.

When the employee did not make the final shortlist of candidates to be interviewed he registered an internal grievance within the University claiming that he should have been shortlisted and subsequently appointed. His complaint was dismissed.

After the unsuccessful internal grievance process, the employee referred an unfair labour practice dispute to the CCMA for conciliation. The conciliation failed and the matter was referred to arbitration. The dispute was dismissed at the arbitration, holding that there was no unfair labour practice committed by the employer.

The employer testified that the appellant did not qualify for the position. Although he had the academic qualifications, his CV did not match the required experience as set out in the advertisement.

The Commissioner could not see his way clear in interfering with the discretion of the employer. He held that the discretion to promote an employee lies with the employer. He could find no grounds for unfair labour practice on the part of the employer.

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The employee took the matter on review before the Labour Court (LC). He argued that the employer adapted the job description in the advertisement to favour the successful candidate to his detriment. The LC held that the decision of the Commissioner was reasonable in the circumstances of the case and the review application had to be dismissed with no order as to costs.

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During argument before the Labour Appeal Court (LAC), counsel for the employee confined his argument to the issue of the alleged conflict of interest. He submitted the following: that Dr Manon was biased towards the successful candidate as she was working in her division. Based on this reason she structured the advertisement in such a way as to favour the successful candidate. The reason for him not being shortlisted was this conflict of interest she should have disclosed her conflict of interests and recused herself from the process.

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Counsel for the employer argued the advert was adapted four years before it was placed and when it was drafted, no one would have known who the applicants for the position would be. It was contended therefore that the argument that the advert was tailor-made to favour the successful candidate had no merit.

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The LAC found that the argument on disclosure of the conflict of interests had no merit. Each of the members of the panel declared that they knew the candidate who had applied for the post in question. Knowledge of a candidate did not disqualify any member of the panel from participating in the process of shortlisting or appointing a candidate.

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The LAC concluded that the decision of the LC could not be faulted.

The appeal was dismissed with no order as to costs.

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