Independent Police Investigative Directive v General Public Service Sector Bargaining Council and Others

IPID advertised a position for Director: National Specialised Investigation Team (NSIT) with reference Q9/2015/46, closing on 13 April 2015. The minimum requirement was a relevant Bachelor's degree or equivalent qualification in Law or Law enforcement. The third respondent (LB John) applied with a National Diploma in Police Administration but was not shortlisted as he did not meet the minimum NQF level 7 qualification requirement. He alleged that he should have been shortlisted based on past experience, and that the successful candidate (fourth respondent, Tlou Samuel Kgomo) submitted his application after the closing date with an incomplete, unsigned Z83 form and uncertified documents. The third respondent referred an unfair labour practice dispute relating to promotion. The arbitrator found that IPID acted unfairly, irrationally, inconsistently and capriciously by not shortlisting the third respondent while shortlisting and appointing the fourth respondent whose application was defective and late. The arbitrator awarded the third respondent compensation equivalent to 12 months' remuneration.

• Whether the arbitrator committed misconduct by arriving at two mutually contradictory conclusions in the award
• Whether the arbitrator erred in awarding compensation to the third respondent despite finding that IPID did not commit an unfair labour practice by adhering to DPSA minimum requirements
• Whether non-shortlisting constitutes an unfair labour practice under section 186(2)(a) of the Labour Relations Act
• Whether the remedy of compensation for non-shortlisting is competent in law
• Whether the arbitrator's award is reviewable on the grounds of unreasonableness

The arbitration award of the second respondent issued under case number GPBC1989/2025 was reviewed and set aside. There was no order as to costs.

An arbitrator commits a reviewable irregularity and misconduct when arriving at two mutually contradictory conclusions in an award, specifically finding that no unfair labour practice occurred while simultaneously awarding compensation for unfair labour practice. Non-shortlisting of a candidate who does not meet the advertised minimum requirements for a position does not constitute an unfair labour practice under section 186(2)(a) of the Labour Relations Act. Shortlisting is merely one aspect of the recruitment process and being shortlisted does not create an entitlement to promotion. A candidate who does not meet minimum requirements has no basis for compensation merely because other candidates who also did not meet requirements or submitted defective applications were shortlisted. An arbitration award will be unreasonable and reviewable where the arbitrator fails to apply his mind to material facts or issues before him with potential for prejudice and the possibility that the result may have been different.

The Court noted the difficulty of sitting as a review court without any record including transcript of proceedings and supporting documents. The Court commented that for the requirements of an advertised post to be met, the candidate who best meets the selection criteria should be appointed, and shortlisting candidates who do not meet set selection criteria would be arbitrary and contrary to the policy objective. The Court observed that it would be unfair to candidates who met all requirements to be assessed against candidates who lack requirements, and unfair to people who did not apply because they did not meet the requirements. The arbitrator also erred in awarding compensation without specifying and quantifying the amount in the award itself, though this was not the primary basis for setting aside the award.

This case clarifies important principles in South African labour law regarding unfair labour practices relating to promotion. It confirms that non-shortlisting does not constitute an unfair labour practice where the applicant does not meet the advertised minimum requirements, and that being shortlisted is merely part of the recruitment process without creating an entitlement to promotion. The judgment also illustrates the application of the Sidumo reasonableness test in review proceedings and confirms that self-contradictory findings by an arbitrator constitute a reviewable irregularity. It reinforces the principle that employers are entitled to set objective minimum requirements for positions and adhere to them in recruitment processes. The case also demonstrates that even where procedural irregularities occur in relation to other candidates, this does not create entitlements for candidates who do not meet minimum requirements.