The legitimate expectation of an appointment
Case:
Eskom Holdings Ltd v Solidarity o.b.o. Anusha Govender and Others (JR 265/20) (judgment 2 November 2023).
Background:
In this case, following the organisational review of the structure within the Security Division at Eskom (“the employer/Eskom”), a vacant senior managerial position of Senior Business Enablement Manager (“the position in issue”) was created. Once the organisational structure was adopted around 2016, the adopted structure had to be implemented by means of appointing employees to act in positions whilst the recruitment process was underway.
Ms Anusha Govender’s (“the employee/Ms Govender”) substantive position within the Security Division was: Middle Manager Security Investigations. However, during the implementation of the structural changes at the security division, Ms. Govender was appointed to act in the position in issue effective from 1 September 2016 to 17 May 2017.
During Ms. Govender’s acting stint, the position in issue was advertised on 6 February 2017. The employee applied, was shortlisted, and interviewed on 27 February 2017. According to the interview scores by the interviewing panel, none of the panel members scored Ms. Govender higher than the second respondent, Ms. Christina Nomsa Mqcina (Ms. Mqcina) who was appointed to the position. Ms. Govender was scored 22 whilst Ms. Mqcina 34.
Aggrieved by her non-appointment to the position in issue, Ms. Govender lodged a grievance in terms of Eskom’s Grievance Policy. Dissatisfied with the dismissal of her grievance following the internal appeal process, Ms. Govender referred her unfair labour practice claim to the CCMA for relief.
At the arbitration proceedings, Ms. Govender alleged that Ms. Mqcina ought not to have been appointed as she was neither qualified to work in the security industry nor did she have any experience in dealing with security matters.
The Commissioner found that there was an unfair labour practice in Eskom’s failure to appoint Ms. Govender who had been acting in the position. Further, the Commissioner found that Eskom created a legitimate expectation to appoint Ms. Govender as she was addressed and referred to with the title of the position and she received a bonus whilst she was acting. The Commissioner directed Eskom to compensate Ms. Govender the amount equivalent to nine months’ salary, due to its failure to promote her to the position in issue.
Eskom approached the Labour Court to review and set aside the decision of the Commissioner.
Eskom contended that the Commissioner ought to have found that it committed no unfair labour practice against Ms Govender in not appointing her to a vacant position she was acting in. It further contended that the arbitration award is not one a reasonable arbitrator would have reached premised on the facts before him.
The Labour Court found that in terms of the advertisement and job description for the position, there was no requirement for the successful candidate to have a security background or qualifications, or to be registered with PSIRA. Ms. Govender had claimed to be more qualified than Ms. Mqcina but had emphasised irrelevant points regarding her security skills, qualifications, and expertise. The Commissioner had ignored the fact that Ms. Mqcina had greater managerial experience than Ms Govender and had far superior academic qualifications. There was no evidence that Eskom’s failure to appoint Ms Govender was unfair. The onus was on her to establish that the decision not to appoint her was unfair. The appointment of Ms Govender to act in the position did not automatically entitle her to promotion to the position.
The court found that the Commissioner had misapplied the law applicable to legitimate expectation. The fact that an employee was referred to by the title of the position in which she was acting did not create a legitimate expectation.
The award was subsequently reviewed and set aside.
Conclusion:
Recruitment and appointments are exclusive preserves of the employer. When an employer appoints one of its employees to act either in a vacant position or in another employee’s stead, there is no automatic obligation for permanent appointment.
