Eskom not obliged to offer post to acting employee, labour court rules

Recruitment and appointments are exclusive preserves of the employer and when an employer appoints one of its employees to act in a vacant position, there is no automatic obligation for permanent appointment.

This is the conclusion reached by the labour court recently as it upheld an appeal by Eskom against an order of the Commission for Conciliation, Mediation and Arbitration (CCMA).

The power utility had sought to set aside a 2019 CCMA order that it committed an unfair labour practice against Anusha Govender when it did not appoint her to a position in which she was acting. 

The court said in or around 2015, after the organisational review of the structure within the security division at Eskom, a vacant managerial position of senior business enablement manager was created.

Once the organisational structure was adopted around 2016, it was implemented by appointing employees to act in positions created while recruitment was under way.

Govender acted in the senior business enablement manager position from September 1 2016 until May 17 2017.

The position was advertised, she applied for it and was shortlisted. However, a more suitable candidate was appointed.

Unhappy, Govender instituted CCMA proceedings after Eskom dismissed her grievance. She said the person who was appointed ought not to have been as she was neither qualified to work in the security industry nor had any experience in dealing with security matters. 

The commission, after evidence from the parties, found that there was an unfair labour practice in Eskom’s failure to appoint Govender. 

Aggrieved, Eskom approached the labour court.

In a judgment on Thursday, acting judge Smanga Sethene said according to the advert for the position, a candidate had to possess, at minimum, a three-year bachelor’s degree in business, finance or similar and have been a manager in the business enablement/business support environment for eight years.

In terms of the job description, the incumbent did not have to be a person with a security background or qualifications. 

Sethene said the position required a person who had worked as a manager in a business development environment.

Though both candidates had bachelor's degrees, the winning candidate also had BSc honours and master's degrees.

Sethene said the winning candidate was a manager of business process development at Armscor from 2005 to 2009 and business processes and assurance manager there from 2009 to 2013. From March 2013 to the date of her appointment in May 2017, she was employed by Eskom as a middle manager: business integration and performance management.

The CCMA ignored this material information, Sethene added, which proved Govender was less qualified for the position.

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