Hospersa v MEC: Health, Eastern Cape (PA2/2015) [2016] ZALAC 64 (2017) ILJ 890 (LAC) (8 December 2016) per Phatshoane AJA (Coppin and Landman JJA concurring)

The LAC allowed the appeal and set aside the order of Lallie J in the labour court.  As the arbitral award was upheld by the LAC it meant that the appointment of a non-registered person was set aside and the matter referred back to the department to re-advertise the post.

Refer to: Unreasoned award reviewed and set aside

LAC summary:

In a claim for unfair labour practice relating to promotion – The Department of Health, Eastern Cape, advertised a post of Deputy Director: Clinical Support Services.  It set as a requirement that the job applicants be registered with the Health Professional Council of South Africa (HPCSA).  The individual appellants, although registered as required, were unsuccessful.  The successful candidate was not registered with the HPCSA but with the South African Nursing Council (SANC).  The arbitrator found that the department could not justify the deviation from the requirement set and concluded that it committed an unfair labour practice against the appellants.  She ordered that the post be re-advertised.  The Labour Court reviewed and set aside the decision of the arbitrator on the basis that she gave no reasons for it and remitted the matter to the Bargaining Council for arbitration de novo before a different arbitrator.

On appeal:

Held, the department failed to discharge the evidentiary burden to justify the departure from the requirements set for the position.  The deviation not only prejudiced the individual appellants but disqualified potential candidates from applying.

Held, that although the arbitrator’s conclusion to the effect that the appellants discharged the onus to prove their unfair labour practice claim was not comprehensive and appeared to be terse, it could hardly be said that she did not provide adequate reasons.  She fully comprehended the nature of the enquiry she was required to undertake and dealt with the primary issue.  The decision reached by her, that the post be re-advertised, was justifiable on the facts.

The order of the Court a quo substituted with an order dismissing the review application.