City of Cape Town ordered to pay R319,000 after former employee was denied fair chance at managerial post.
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The Labour Court in Cape Town found that the City of Cape Town unfairly denied a senior employee proper opportunity to compete for a promotion because of an impermissible headhunting process, awarding him over R319,000 in compensation.
Judge Suzanna Josephine Harvey reviewed and set aside an arbitration award that had dismissed Mahlatse Maebana's unfair labour practice claim.
The court declared that the municipality had acted unfairly during the recruitment process for the position of Manager:
Maebana, who was employed as Head of the Operational Programmes Management Unit in the City's Urban Waste Management Directorate, unsuccessfully applied for the managerial position when it was first advertised in 2022.
Although he met the minimum requirements, he was not shortlisted and no appointment was made. The municipality then embarked on what it described as a headhunting process, identifying three candidates, including fellow employee George Jonkers. After that process also failed to result in an appointment, the post was re-advertised in 2023.
Maebana applied again, he was shortlisted and achieved the highest interview score among the candidates.
However, the interview panel concluded that none of the candidates were competent for appointment. Instead of restarting the recruitment process, the City returned to the candidates identified during the earlier headhunting process and ultimately appointed Jonkers.
The Labour Court found that the commissioner who originally dismissed Maebana's complaint had made a material error in law by concluding that the City's recruitment policy allowed headhunting in the circumstances.
Judge Harvey held that the Municipal Staff Regulations only permit alternative recruitment methods such as headhunting where a post has been classified as a critical and scarce-skills position after a recruitment process fails.
The collections branch manager position did not fall into that category.
The court found that the City's internal recruitment policy could not override the later Municipal Staff Regulations, meaning the municipality should have simply re-advertised the position instead of returning to candidates identified through the earlier headhunting exercise.
The court said Maebana did not have to prove that he would have been appointed to succeed in his claim.
Instead, the unfairness lay in the fact that he was denied another fair opportunity to compete for the position under a lawful recruitment process.
Judge Harvey found that, had the regulations been correctly applied, the commissioner may have reached a different conclusion about whether the City's conduct was unfair.
The court also criticised the commissioner's unexplained refusal to issue a subpoena for the Municipal Manager, describing it as procedurally unfair. However, it rejected Maebana's allegations of conflicts of interest involving senior City officials and found no evidence that interview scores had been manipulated.
By the time the matter reached the Labour Court, Maebana had left the City's employment and no longer sought appointment to the post or to overturn Jonkers' appointment. Instead, he requested compensation equal to 12 months' remuneration.
The court declined to award the maximum amount, finding that while Maebana's right to a fair promotion process had been infringed, there was no evidence that he would necessarily have secured the position.
Judge Harvey instead awarded compensation equivalent to three months' remuneration, amounting to R319,604.75, describing it as a fair remedy for the loss of a lawful opportunity to compete rather than compensation for the promotion itself.
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