Unfair labour practice during selection process: successful candidate’s verbal warning overlooked

In the case of Noonan v Safety & Security Sectoral Bargaining Council and others 2012 9 BLLR 876 (LAC), the appellant (“Noonan”), a serving police captain, was an unsuccessful applicant for the position of Section Head: Evaluation Services with the rank of superintendent. The successful candidate had a valid verbal warning at the time of the selection process and failed to disclose this. Noonan referred a dispute to the bargaining council in terms of section 194 of the Labour Relations Act, 1995.

Section 194 deals with the limits on compensation which may be awarded to an employee who has referred an unfair dismissal or unfair labour practice dispute against his employer.  Section 194(4) specifically provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all circumstances, but not more than the equivalent of 12 months remuneration.

At the first arbitration Noonan was awarded protected promotion to the rank of superintendent. Noonan and the employer agreed that the matter should be reviewed because the successful candidate had not been joined to the arbitration proceedings.

The dispute was set down for a new arbitration hearing, this time joining the successful candidate.

Noonan’s contention was that the members of the selection committee did not apply their minds to the selection because they did not take the verbal warning into account. The arbitrator found that the employer committed an unfair labour practice and ruled that Noonan should be promoted to the rank of superintendent at the station where he was posted and that he be compensated the difference in salary from 1 December 2004.

The Minister of Safety and Security launched a review application at the Labour Court to set aside the arbitrator’s award. The Labour Court found that the arbitrator came to a decision that a reasonable decision maker could not have arrived at, reviewed the award and set it aside.

Noonan took the matter on appeal to the Labour Appeal Court, which found that the decision of the arbitrator, namely that the conduct of the employer amounted to an unfair labour practice, was a decision of a reasonable decision maker. The Labour Appeal Court found that the Labour Court overlooked several important aspects in coming to its finding, including the fact that the successful candidate did not disclose the verbal warning. The Labour Appeal Court awarded Noonan 9 months compensation for the procedural unfairness in the selection process.