Eskom has won its case at the Labour Appeal Court against employee Anele Gxumisa. The court cancelled an earlier order that the power utility pay him six months of salary.
Gxumisa had been left off the shortlist for a promotion. Eskom told him he did not hold the qualification the job required.
The post called for a qualification in human resources, social sciences or behavioural science. It had to be at NQF level 7, with 360 credits. Candidates also needed seven years of relevant professional experience.
Gxumisa holds a Bachelor of Commerce in Informatics and an LLB law degree. Neither falls in the fields listed for the post.
He first took the matter to the CCMA. At the arbitration, Eskom called several witnesses. They told the hearing that he did not meet the requirements for the job.
The CCMA commissioner dismissed his claim. The commissioner found that he did not meet the qualification and experience rules. The commissioner also found that Eskom had not committed an unfair labour practice.
Gxumisa then asked the Labour Court to review that decision. The Labour Court set the award aside. It ordered Eskom to pay him compensation equal to six months of pay at G17 level.
Eskom appealed. In a judgment delivered on 22 October, the Labour Appeal Court upheld the appeal. It set aside the Labour Court order and dismissed Gxumisa’s review application.
On appeal, Gxumisa argued that he was not given a fair chance to compete. He said his BCom degree had not been a problem when he acted in the same position before.
Acting Judge N Gqamana found that Gxumisa had not shown the commissioner’s decision was unreasonable. The court said a review court cannot simply replace an arbitrator’s view with its own. The test is whether a reasonable decision maker could reach the same outcome on the evidence.
Gqamana found that the Labour Court had not applied the correct review test.
The appeal court also said the Labour Court was wrong to award compensation. Gxumisa had not asked for this payment in his notice of motion.
According to the judgment, nothing before the court showed that Eskom was served with the draft order proposing the payment. There was also no sign Eskom was told such relief was being considered.
The review application was not opposed. The judgment said this did not remove the Labour Court’s duty to check that the relief was properly sought and backed by evidence.
The appeal court said that even if the award could be reviewed, a factual and legal basis was needed for compensation. The Labour Court had to identify the unfair conduct. It also had to explain why six months of pay was just and fair.
Without evidence that Gxumisa was treated unfairly, there was no basis for compensation, the court said. It made no order as to costs.
Source: this article is based on reporting by IOL. Image: IOL. Written with the help of AI and published by the Tzaneen Voice Business desk. See our Editorial Standards.
Anelisa Nkuna covers business and money news for Tzaneen Voice. Anelisa reports on the rand, fuel prices, interest rates, jobs, Eskom, Transnet, farming and company results. The aim is simple: explain what the numbers mean for household budgets, small businesses and workers in South Africa.