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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which deals with 'selection criteria for retrenchment' in the light of two recent judgments that had rather different outcomes. We also discuss three new cases: The first case looks at circumstances where there is an ulterior motive in making a protected disclosure. The second case considers whether an employer enjoys managerial prerogative to set the academic qualifications for a job. The third case decides the moment from which an employer is liable to pay interest on a compensation order.
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Does ulterior motive or malice disqualify a protected disclosure?
Mr Baxter was employed as the Area Commissioner: Kokstad in the Department of Correctional Services at the C-Max prison. The Department undertook various learnership programs through which candidates who participated in them could thereafter be employed by it. Mr Baxter's daughter successfully applied for one such learnership program. Her appointment was approved by the Acting Regional Commissioner. According to a later report, Mr Baxter allegedly influenced the appointment of his daughter. As a consequence the appointments for the learnership program were suspended pending the outcome of an investigation.
On the following day Mr Baxter sent a telefax to his superior requesting an investigation to be conducted against the entire learnership program as well as against the 2013 appointments of five officials. Mr Baxter addressed another letter to his superior in which he requested an audience with the Acting National Commissioner and the Minister of the Department about corruption and abuse of power. Subsequently Mr Baxter was dismissed on a number of different charges which included his interference in the learnership selection process.
Mr Baxter challenged his dismissal in the Labour Court in Baxter v Minster of Justice and Correctional Services and Others (D1171/2014)  ZALCD 11 (1 August 2018). His complaint was that after disclosing to the Department that he had a reason to believe that there was conduct of an employee of the Department which showed a failure to comply with a legal obligation, the Department subjected him to disciplinary action by suspending and thereafter dismissing him. In other words he was subjected to an 'occupational detriment' after making a protected disclosure in terms of the Protected Disclosures Act 26 of 2000.
The Labour Court held that the dismissal was not automatically unfair as envisaged in section 187(1)(h) of the LRA as it did not constitute an occupational detriment in terms of the provisions of the PDA. The dismissal of Mr Baxter was substantively and procedurally fair. The basis for the finding was that Mr Baxter was driven by ulterior motive, revenge or malice, and disclosure is only protected if it is made in good faith. The court said that to enjoy protection, the employee must bona fide have believed that the information disclosed was true.
This decision should be read alongside the recent LAC decision of John v Afrox Oxygen Limited (JA90/15)  ZALAC 4 (29 January 2018) which held that to qualify as a protected disclosure, an employee needs only have reason to believe that the information concerned shows or tends to show that the impropriety has been or is being or may be committed in the future. The employee does not have to show that the information is factually accurate.
The difference between the two cases is that Baxter deals with ulterior motive in disclosing, whereas John deals with the accuracy of the disclosure.
Does an employer have the right to set educational qualifications for a job?
The Department of Community Safety (Western Cape) advertised the post of Deputy Director: Security Support Services, Strategic Planning and Knowledge Management. The job advertisement stipulated three minimum requirements: (i) an appropriate tertiary qualification at NQF level 6; (ii) a minimum of three years' management experience; and (iii) a valid driver's licence.
Ms Thorne, an Assistant Director: Security Support Services in the Department applied for the post. She had acted in the post for 7 years and thus in effect sought promotion to the post she had occupied in an acting capacity for an extensive period.
Ms Thorne was shortlisted and then interviewed for the post by the Department's selection panel. Subsequent to scoring, Ms Thorne was nominated as the preferred candidate. It later emerged that Ms Thorne had not met the requirements of the post. Ms Thorne's Advanced Certificate qualification at NQF level 6 comprised only 120 credits. The Department maintained that her qualification fell below the minimum of 360 credits required for the post.
Ms Thorne referred the dispute to arbitration. The arbitrator found that the Department had not committed an unfair labour practice. His essential reasoning was that (a) it was never in dispute that the Applicant had the ability to perform the duties of the advertised position; (b) the employer also trusted her to act in this position for several years and nominated her for appointment; (c) acting in a position does not create an automatic right to be appointed; (d) the only reason for non-appointment was because she did not meet their minimum qualification requirements for appointment as Deputy Director.
As regards the different interpretations of what an appropriate tertiary qualification at NQF level 6 is, the arbitrator accepted that the employer always considered the minimum qualification requirement for appointment to this position being a three-year qualification with 360 NQF credits and not a one-year qualification worth 120 NQF credits. The fact that the advertisement did not clearly state a three-year tertiary qualification did not mean that the employer amended the qualification criteria or acted dishonestly or unethically in the process. The arbitrator found that government must be allowed to set reasonable minimum academic qualifications for appointment into certain senior positions, and did not believe it was possible to intervene when an employer has set reasonable minimum academic requirements for appointment.
On review, the Labour Court held that the decision of the arbitrator was reasonable and not vitiated by a gross error of law.
On appeal, the LAC in Public Servants Association obo Thorne v Department of Community Safety (Western Cape) and Others (CA07/2017)  ZALAC 24 (8 June 2018) held that in setting appointment criteria, the Department is allowed to set an educational standard which it believes is reasonable for the requirements of the post. The goal of professional merit in the public service confers a managerial prerogative to require a three-year or 360 credits qualification at NQF Level 6 for the post of a Deputy Director; and hence it may reasonably be held, as the arbitrator did, that this is what the Department meant in the job advertisement by an appropriate tertiary qualification at NQF Level 6. There was accordingly no merit in the appellant's submission that the Department amended the advertised criteria. The Labour Court judgment's was upheld and the appeal dismissed.
This case is a reminder that in the setting of appointment criteria in relation to the requirements of a post, an employer has a prerogative to set an educational standard which it believes is reasonable for the requirements of the post. But we do think an employer must be able to substantiate a rational link between the required qualification and the inherent requirements of a job.
When does interest accrue on a compensation order?
This is a story where the time sequence is important to watch.
On 28 April 2005 the Dept. of Home Affairs dismissed Mr Malatji, the appellant in this matter. He referred his dismissal dispute to arbitration and on 14 August 2006 the GPSSBC issued an arbitration award in terms of which the appellant was reinstated retrospectively to his former position. The Minister and the Department were also ordered to pay him 12 months' remuneration. During October 2006 the Minister and the Department launched an application to review and set aside the award issued by the GPSSBC.
On 2 April 2013 the Labour Court reviewed and set aside the GPSSBC's award on the grounds of procedural unfairness of the dismissal. It substituted the relief with an amount of R399 750.00, equivalent to the appellant's nine months' salary. The award was made an order of the Labour Court in terms of s 158(1)(c) of the LRA. The Labour Court made no order in respect of the payment of interest.
On 24 April 2014 the Department paid the principal amount and interest from 2 April 2013, the date of the judgment of the Labour Court. However, the appellant demanded that he be paid interest from 1 September 2006, the date pursuant to the issuing of a variation award by the GPSSBC.
After an application to the Labour Court for a declaratory order, the matter was taken on appeal to the LAC in Malatji v Minister of Home Affairs and Another (JA52/2017)  ZALAC 23 (15 August 2018). The LAC held that interest can only be levied and would accrue once the amount of compensation is ascertained or easily ascertainable. Where the award is subject to review, it cannot be said that the quantum is readily ascertainable and that the time for performance by the debtor is fixed. This is so because there is no obligation on the debtor, under those circumstances, to pay the debt.
The court also held that interest could not have accrued from the date of the issue of the award because it was challenged by means of a review before the Labour Court. The judgment debtor would only be entitled to the payment of interest on the unliquidated claim from date of the award if the award is not challenged through the review process, or from date of the judgment on review when the Court's determined the quantum of the claim. The LAC accordingly held that the Department was only liable to pay interest from the date of the LC order, namely 2 April 2013.
This case is a reminder that there is no principle of law which requires a debtor to be liable for the payment of interest for a period, in circumstances where the extent of its liability had not yet been established.
ARTICLE: Selection criteria for retrenchment
By Prof Alan RycroftThe duty to show that the selection criteria used for retrenchment were both objective and fair rests on the employer. Cases illustrate that employers need to be able to justify both the criteria and the application of those criteria.
In National Union of Metalworkers of South Africa and Others v Lectropower (Pty) Ltd (JS1151/2014)  ZALCJHB 266 (6 July 2018) the Labour Court found the employer was able to justify the choice of criteria as well as their implementation. But not so in Kenco Engineering CC v National Union of Metalworkers of South Africa (NUMSA) obo Members (JA/29/16)  (LAC) (1 August 2017), where the Labour Appeal Court found the employer's application of the selection criteria lacked objectivity.
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