Judgment on KZN employees’ promotion

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Independent Newspapers

Johannesburg - The Constitutional Court upheld an appeal on Wednesday by two KwaZulu-Natal education department employees against a decision to review and set aside their promotions.

It based the judgment on technical legalities and delays in previous court applications.

The employees approached the court after the Labour Appeal Court upheld a decision by the then education MEC Ina Cronje to review and set aside their promotions amid alleged irregularities in the employment process.

They applied for the same post in 2004, in response to an advertisement.

The first applicant, NL Khumalo, was short-listed, interviewed and promoted to the post in April 2004.

The second applicant, Krish Ritchie, who was not short-listed, lodged a grievance with the bargaining council and, in a settlement reached in July 2005, was granted a protected promotion.

In October 2005, 11 other employees complained to Cronje, alleging that there had been irregularities in the advertising and appointment procedures.

She appointed a task team which found, in 2007, that both the promotion and protected promotion were irregular.

In October 2008, Cronje brought a successful application in the Labour Court to have both promotions reviewed and set aside.

The employees went to the Labour Appeal Court, and when it dismissed their case, they approached the Constitutional Court, contending that their promotions were validly and lawfully granted.

They argued that Cronje had not been entitled to approach the Labour Court to resolve the matter.

She, in turn, submitted that she was duty bound to do so, and said the Labour Appeal Court had correctly set aside the promotions.

In a majority judgment, the Constitutional Court found it problematic that although the allegations of employment irregularities were raised in 2005, court action was taken only in 2008.

It found the MEC had unreasonably delayed in bringing the application to review the employment issues in the department.

The delay was considered unexplained and unreasonable, and had constrained the court in determining the lawfulness of the promotion.

In terms of the validity of the protected promotion, the court found Cronje had followed the incorrect legal process, and the case fell outside the time limit set by the Labour Relations Act in her previous application. - Sapa


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