Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC)

Principle:

It is insufficient for purposes of an unfair labour practice claim for an employee to merely claim, or even prove, that he was sufficiently qualified for the posts for which he had applied. The employee must in addition show that the employer's decision to appoint somebody else was unfair.

Facts:

After applying unsuccessfully for several promotional positions, the employee referred a dispute to the CCMA. The arbitrating commissioner held that the employee had failed to prove that the respondent had committed an unfair labour practice against him.

In an application for review of the award, the Court held that it was insufficient for purposes of an unfair labour practice claim for an employee to merely claim, or even prove, that he was sufficiently qualified for the posts for which he had applied. The employee must in addition show that the employer's decision to appoint somebody else was unfair. Since there was a rational objective connection between the arbitrating commissioner's finding and the conclusion he had reached, there was no basis on which the Court could interfere with the award.

The application was dismissed with costs.

Extract from the judgment:

[At para 11]  In my view, the questions which the commissioner asked in the first paragraph of that quotation were wholly justifiable questions in relation to a dispute over a matter of promotion. It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

[At para 12]  The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise.