Bensch v Phalaborwa Transitional Local Council [1997] 9 BLLR 1163 (LC)

Principle:

If an advertisement is placed for an existing post filled by an employee, it may be an unfair labour practice.

Facts:

After the employer was established as a local government body in terms of the Local Government Transition Act 209 of 1993, it advertised for the post of chief executive officer/town clerk. The employee, the town clerk of the employer, sought an interdict restraining the employer from filling his post, alleging that were this to be done he would have to be transferred to another post of lower status, and that he had been given no notice indicating that it intended terminating his employment or demoting him. As the employer filed no answering affidavit, the Court was unable to conclude whether the advertisement was for a newly-created post in a new organisational structure or whether it was for the position held by the employee. In the circumstances, the employee had established a prima facie case that the advertised post was his own and that his assumption that the employer intended either dismissing or demoting him was reasonable. An interim order was accordingly issued restraining the employer from filling the post until the matter had been arbitrated.

(Note that the allegation of an ulp was withdrawn for jurisdictional reasons (ie had to go to CCMA not LC). The case then proceeded on the interdict alone. But underpinning the matter was an ulp regarding a pending demotion.)

Extract from the judgment:

[At p 1166]   On the facts before me, the applicant is the town clerk of the respondent. He has not been dismissed. He is therefore entitled to remain in his office and prima facie, on the only facts before me, which are those of the applicant, the post which has been re-advertised is his post. It is therefore not unreasonable for him to think and to allege and to act on the assumption that the respondent intends either dismissing him or demoting him.

On this basis, I am of the opinion that an interdict should be issued.