NUTESA v Technikon Northern Transvaal  4 BLLR 467 (CCMA)
1. If a promotion is unfair, an arbitrator may only set aside the appointment if the person appointed is a party to the arbitration.
2. If an appointing body intends to deviate from any material requirement appearing in an advert, the position should be readvertised.
The applicant union referred two disputes concerning alleged unfair labour practices to the CCMA: (i) the appointment of a dean whose experience did not comply with that prescribed by the employer; (ii) the secret appointment of certain people to newly-created posts. As to (i), the CCMA found that the employer had in its advertisements for the posts of deans stipulated that applicants should inter alia have been employed by it for at least three years. However, it had appointed one dean who had entered its service only two months prior to his appointment as such. The Commission held that, although the advertised requirement was only one of the factors to be considered and was not peremptory, the language in which the advertisement was couched must have deterred certain people who did not have the required length of service from applying. Before appointing a candidate who was suitable but for the absence of this qualification, the committee concerned should have re-advertised the position. Failure to do so entailed unfair discrimination on an arbitrary ground against employees who might otherwise have applied for the position. In view of the fact that the person appointed was not a party to the proceedings, the Commission merely made a declaratory order to this effect.
The background to the second dispute was that an affirmative action task team had sought and obtained permission to advertise all vacant or newly-created posts. This notwithstanding, certain people had been appointed to newly-created posts without invitations for applications for the positions ever having been advertised. The Commission found that the positions concerned had been created in secret with the appointments of specific people in mind, and that this constituted a violation of the agreed procedures. The five appointments were accordingly set aside and the employer was instructed to re-advertise the positions and follow the proper procedure thereafter.
Extract from the award:
3.4. In the circumstances I am of the opinion that there was an unfair act or omission between the Technikon and employees who might otherwise have applied and that this involved unfair discrimination, directly or indirectly on an arbitrary ground.
4.1. It is neither practical nor realistic for the appointment of Mr Mosia to be set aside and in fact the Union did not ask for this. Indeed I have grave doubts that such an order would be competent especially as Mr Mosia was not a party to the Arbitration proceedings. It was conceded by the Union that it did not quite know what relief it sought if it were to be successful and I formed the impression that it would be content with the satisfaction of its contention being upheld.
4.2. The object of the dispute resolution provisions of the Labour Relations Act are not merely to give academic or moral awards but to resolve a dispute in a practical manner. Section 138(a) of the Labour Relations Act ("the Act") provides that the Commissioner may make an appropriate arbitration award in terms of the Act, including, but not limited to, an award
. . . (irrelevant)
that gives effect to the provisions and primary objects of the Act; and
that includes, or is in the form of a declaratory order.
The unusual nature of this dispute does not clearly bring with it within the provisions of (b) above and accordingly I am left with (c). The form of the order will appear at the end of this award.
7.1. Insofar as the complaint concerning the Rotating Dean's appointment is concerned, having regard to the practical and legal problems which would arise if Mr Mosia's appointment were to be set aside, I can only issue a declaratory order in terms of section 138(a)(c) that the appointment constituted an unfair labour practice against other employees who may have applied but for the stated requirement of 3 years teaching in the Technikon. I direct that in future if the appointing body intends to deviate from any material requirement which appears in an advertisement, that the position be readvertised with the appropriate variation reflected therein.
7.2. Insofar as the complaint concerning the new positions and redeployment is concerned, there is at least one material difference from the situation of Mr Mosia.
In his case there was an advertisement albeit that the qualifications stated therein were not subsequently fully adhered to in the making of his appointment.
In the case of the new positions redeployment there was no advertising at all. On the contrary the creation of the positions and the appointments were done in secrecy with preconsidered individuals in mind.
In the circumstances there has been an unfair labour practice and these appointments cannot be allowed to stand although of course, the individuals concerned are entitled to reapply.
My award is accordingly that the appointments of the 5 individuals is set aside.
7.3. The Technikon is directed to follow the appropriate process in establishing the positions, and to readvertise the positions and to assess other applicants for the positions equally with those previously appointed. For this purpose I direct that the majority of the persons involved in the selection process should not have played any role in the previous appointments.