Department of Justice v CCMA & others [2004] 4 BLLR 297 (LAC)

Principle:

If an employee's appointment to a post amounts to that employee being appointed to a higher rank or position, that is promotion and a resultant dispute is a dispute relating to promotion and falls within the ambit of s 186 of the LRA.

Facts:

When the Chief State Law Advisor retired, the Department of Justice advertised the post internally and externally. At the time, the formal requirements for the post were possession of an LLB degree and admission as an advocate of the High Court. A selection committee was appointed to shortlist the many applicants and conduct interviews. Four candidates were short listed, including the then Deputy Chief State Law Advisor, B. After interviewing the short listed candidates, the selection committee decided not to recommend any of them. The post was re-advertised. This time, there were only 10 applications. Among them was one W, a black attorney who did not possess an LLB. The committee decided not to recommend any of these applicants, all of whom were considered weaker than the four original short listed candidates. The department then decided that, save for the facts that W did not have an LLB and was not an admitted advocate, W had the requisite "profile" for the post. The department then recommended to the Minister that the formal requirements for the post should be relaxed, and that W (who possessed BA Law and B Proc Degrees) should be appointed on a fixed term contract. The Minister agreed, and W was appointed Chief State Law Advisor for 12 months.

B then applied for ""protective promotion" on the ground that he complied with the requirements for the post and had a legitimate expectation to be appointed.

At the Labour Appeal Court the department contended that the CCMA had lacked jurisdiction to arbitrate the dispute because it was not a dispute about promotion, because it involved a dispute of interest, and because the department had raised the defence of affirmative action.

The Court dismissed the department's contention that the CCMA lacked jurisdiction because the dispute was one concerning "interests", not rights; disputes concerning appointments or promotions are disputes concerning the right of applicants to be treated fairly, and are thus about claims for rights.

The Court held further that item 2(2)(b) was not confined to disputes concerning conduct relating to promotion, thus excluding disputes concerning whether the employee should have been promoted

Extract from the judgment:

[58]   In Mashegoane & another v University of the North [1998] 1 BLLR 73 (LC) Mlambo J adopted the approach, correctly in my view, that, if an employee's appointment to a post would have amounted to such employee being appointed to a higher rank or position, that is promotion and a resultant dispute is a dispute relating to promotion and falls within the ambit of item 2(1)(b).