The South African Labour Court, in
In 2016,
- he should have been appointed to the position and was thus unfairly selected for retrenchment; or
- there had been an alternative to his dismissal that should have been invoked.
He, however, took a different approach. He referred an unfair labour practice dispute to the
CCMA proceedings
By the time the dispute was arbitrated by the CCMA, Mr Gcaba had already been retrenched. The Commissioner stated that he was faced with a "hybrid situation" in that, while the process bore elements of the section 189 process, it also exhibited some elements of an unfair labour practice dispute relating to promotion. The Commissioner found that
Labour Court proceedings
On review, the crux of this matter before the Labour Court was
- whether the CCMA had jurisdiction to make a ruling on a matter of an alleged unfair labour practice that arose within the context of a restructuring process; and
- most importantly, whether the employer's failure to appoint an employee in a more senior position during a restructuring amounted to an unfair labour practice relating to promotion.
The Labour Court rejected
[14] "Unfortunately, this submission is flawed. To my mind, it is inconceivable that in a restructuring process the affected employees would harbour an expectation for promotion as opposed to being placed in alternative positions available, whether senior or junior in status or rank. A disputed failure to appoint an applicant to a different position, even though of a higher status, will not necessarily be classified as a dispute concerning promotion."
The review application was upheld. But the court did point out that Mr Gcaba had a remedy. Although he may not have been entitled to cast the dispute as one relating to promotion and therefore allege an unfair labour practice dispute, he could nevertheless argue that his dismissal was unfair. Indeed, he had already referred such a dispute to the Labour Court.
Reviewed by
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