EThekwini Metropolitan Municipality: Durban Metropolitan Police Services v Khanya (DA9/2012) [2014] ZALAC 48 (18 September 2014) per Dlodlo AJA [Waglay JP and Mokgoatlheng AJA concurring]

The Labour Appeal Court allowed the appeal and disallowed the cross-appeal.

LAC summary: Unfair labour practice related to promotion- Employer re-advertising position of Sergeant and adding requirement of code 15 motorcycle licence.  First respondent contending code 15 motorcycle licence discriminatory because of his disability.  Commissioner finding that bargaining council lacking jurisdiction- Labour Court reviewing arbitration award and awarding employee compensation.  Appeal –Labour Court incorrect in reviewing award.  Cross-appeal.  Employees contending code 15 motorcycle licence not an essential requirement for the advertised position.  Commissioner finding that previous arbitration award that code 15 licence a requirement for the post of Sergeant.  Employees failing to discharge the onus that employer committed unfair labour practice.  Arbitration award reasonable.

[1] The Labour Court dealt with an application in terms of section 158(1)(g) of the Labour Relations Act 66 of 1995 (LRA) which sought to review and set aside an arbitration award dated 17 April 2009 issued by the second respondent (Commissioner).  In terms of the arbitration award, the first respondent’s (Mr Khanya) claim of unfair labour practice was dismissed together with the claim of the other aggrieved employees on the grounds that the appellant had not committed an unfair labour practice.  The review application was opposed.

The Labour Court set aside the arbitration award in respect of Mr Khanya and ordered that Mr Khanya be compensated in an amount of R15 000.00.  It is against this order that the Appellant appeals.  There is also a cross-appeal on behalf of the other aggrieved employees.  This matter concerns both the appeal and the cross-appeal.  I might mention that there were altogether nine Applicants before the court a quo in this matter.  Save for Mr Khanya, the other applicants are now referred to as the aggrieved employees in this appeal.  We are told that at the review application stage, two of the aggrieved employees (Ms Miller and Ms Williams) had been promoted to the rank of Sergeant but that they remain parties to these proceedings insofar as the question of costs is concerned.