ConCourt to rule on employees’ promotion

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A full bench sitting of the Constitutional Court in Johannesburg. File picture: TIRO RAMATLHATSE

Johannesburg - The Constitutional Court will deliver judgment on Wednesday on an application for leave to appeal a decision that set aside promotions of two KwaZulu-Natal education department employees.

The applicants argued that their promotions were granted lawfully.

In March 2004 both employees applied for the same post within the department in response to an advertisement. The first applicant was short-listed, interviewed and eventually promoted to the post in April 2004. The second applicant was not short-listed.

The second applicant lodged a grievance with the department, which was referred to the General Public Service Sectoral Bargaining Council and set down for arbitration.

Before the conclusion of the arbitration proceedings, the department and the second applicant reached a settlement agreement, granting the second applicant a protected promotion. The settlement agreement was made in July 2005.

In October 2005, 11 other employees at the department complained to the provincial education MEC through the National Union of Public Sector and Allied Workers. They alleged there had been irregularities in the advertising and appointment procedures, and cited the two employees' promotions.

The MEC appointed a task team to investigate the complaint. The team reported to the MEC in January 2007 having found that both the promotion of the first applicant and the protected promotion of the second applicant were irregular.

According to the team's report all documentation relating to the first applicant's promotion was absent and that the responsible officials could not give proper explanations for their decisions.

In October 2008 the MEC launched an application in the Labour Court to have both promotions reviewed and set aside.

The Labour Court granted the relief. The applicants' appeal of the Labour Court's decision to the Labour Appeal Court was dismissed.

They approached the Constitutional Court and sought leave to appeal against the Labour Appeal Court's decision. They argued their promotions were validly and lawfully granted.

The two also argued that the MEC was not entitled to approach the Labour Court to resolve the matter. The MEC opposed the application for leave to appeal and argued that she was duty bound to approach the Labour Court.

The MEC argued that the Labour Appeal Court correctly set aside the promotions.


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