A white policeman, who scored the highest in a job interview but was passed over, has lost his appeal in the Cape Town Labour Court where he tried to have his failure to get the job reviewed on grounds of scoring discrepancies.
The court found that R Burger did not prove that the arbitrator failed to properly consider the evidence, or that the decision is one that a reasonable decisionmaker could not reach.
Burger, who was represented by Solidarity, applied to the Labour Court of South Africa to have the SAPS’s failure to promote him to the post of warrant officer declared an unfair labour practice.
This was after he took the matter to arbitration in December 2021, with a finding being issued in February 2023 that the SAPS had not committed an unfair practice when appointing his colleague Hartzenburg instead.
The court heard that Burger had applied for the post, which was advertised in August 2020. The post was for the rank of warrant officer in the Forensic Detective Services and Explosive Sections, previously known as the Local Crime and Criminal Record Centre.
Burger and Hartzenburg were among the applicants who were shortlisted. Burger was recommended for the job after he scored the highest in the screening process, obtaining 73%, while Hartzenburg scored 65%
However, Hartzenburg — a coloured male — was appointed from April 2021. This, SAPS explained, was to address equity in the division as coloured males were underrepresented by eight, and white males were overrepresented, according to the SAPS employment equity figures, by 116.
The interview panel, aware of the employment equity profile, still recommended Burger for the post, prompting the divisional commissioner to appoint a moderation committee after receiving the panel’s recommendation for Burger’s promotion.
The moderation committee, supported by the arbitration commissioner, decided not to uphold the panel’s recommendation and, in applying equity, promoted Hartzenburg to the post.
Burger’s grounds of review, as contained in his founding affidavit, are that the commissioner had failed to apply his mind to material facts and misconstrued evidence, his conclusion was unreasonable, and that he would have come to a different conclusion if he understood the evidence and the question of law before him.
Burger argued that the commissioner had committed misconduct in relation to the duties of the commissioner as an arbitrator and had exceeded his powers.
In analysing the grounds of review, acting judge Coen de Kock noted that he was not required to determine whether the appointment that was made was correct, but rather — based on evidence — if the decision not to appoint Burger fell “within the bands of reasonableness”.
“As long as the decision taken by the employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying interference with the decision to promote. The court held that it will be arbitrary if the decision has little or no rational basis,” De Kock said.
He added that to succeed with a claim of unfair labour practice relating to promotion, the employee must prove that the employer had exercised its discretion capriciously, for unsubstantiated reasons, or that the decision was taken on a wrong principle or in a biased manner.
With this in mind, he found that Burger had failed to prove that SAPS's actions were irrational, capricious or arbitrary, or that it was motivated by bias, malice or fraud, failed to apply its mind or had exercised its discretion for insubstantial reasons or based on wrong principles.
Burger’s application was therefore dismissed.
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