- Everton applied for a senior SAPS position, was shortlisted and interviewed, but was not shortlisted when the same position was advertised again.
- He eventually referred an unfair labour practice dispute to the Safety and Security Sectoral Bargaining Council more than a year after the events in question, without applying for condonation.
- The Labour Court in Gqeberha found that the arbitrator therefore had no jurisdiction and declared the eight-month compensation award a nullity.
The dispute began in 2017 when Captain BH Everton applied for the position of Commander: Support Services at Gqeberha Park Police Station. He was shortlisted and interviewed, but SAPS later withdrew the position and advertised the same post again under a new post number.
Everton applied for the position again, but this time he was not shortlisted. He believed this was unfair because he had already been shortlisted for the position and believed he was better qualified than some of the candidates who were shortlisted the second time.
He lodged a grievance on 5 December 2017 and also requested information from SAPS about why the first recruitment process had been abandoned.
Dispute only reached the bargaining council in 2019
Everton continued seeking information from SAPS and pursuing his internal grievance. In February 2019, Solidarity, acting for him, referred an unfair labour practice dispute to the Safety and Security Sectoral Bargaining Council.
The referral was late. An unfair labour practice dispute generally has to be referred within 90 days, and when a dispute is referred late, the employee must apply for condonation to have the delay excused. Captain Everton did not apply for condonation when the dispute was referred.
Arbitrator awards eight months’ pay
The dispute nevertheless proceeded to arbitration. On 3 December 2021, the arbitrator found that SAPS had committed an unfair labour practice by denying Everton a fair opportunity to compete for the position.
The arbitrator awarded Captain Everton compensation equal to eight months’ remuneration rather than ordering SAPS to promote him.
SAPS later approached the Labour Court to review the award. Shortly before the review hearing, it raised a more fundamental issue: the original dispute had been referred to the bargaining council too late, and Captain Everton had never applied for condonation.
Judge R Lagrange therefore had to decide whether the arbitrator had jurisdiction to hear the dispute before considering the merits of the arbitration award.
Judge says Everton knew about the problem
Everton argued that he needed more information from SAPS before he could properly bring his claim. Judge Lagrange disagreed and found that he already knew enough in 2017 to refer his unfair labour practice dispute.
By 8 November 2017, Everton knew that the first recruitment process had been abandoned. By December, he knew that he had not been shortlisted when the position was advertised again and had already lodged a grievance. By 1 March 2018, he also knew that another candidate had been appointed.
The judge found that the information Everton was seeking from SAPS might have helped him prove his complaint, but he did not need that information before referring the dispute.
The judge also found that pursuing an internal grievance did not stop the 90 days from running. The time limit ran from the alleged unfair conduct or omission, rather than from the conclusion of the internal grievance process.
Eight-month award declared a nullity
The judge found that the referral to the bargaining council was out of time and that condonation had never been sought. That meant the arbitrator had no jurisdiction to hear the dispute.
Because the arbitrator had no jurisdiction, the 2021 arbitration award was legally invalid. The Labour Court therefore did not need to decide whether the arbitrator had been right or wrong about Captain Everton’s promotion complaint.
Judge Lagrange upheld SAPS’s preliminary objection and declared the arbitration award a nullity for want of jurisdiction. The court made no order as to costs.
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