Promotion: procedural and substantive fairness in appointment

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Appointment and promotion disputes continue to raise interesting questions:- Can an applicant amend the referral form? Can procedural aspects be separated from substantive aspects in an appointment dispute? Can the confidential information of other applicants be disclosed?


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Case No. PSES162-06/07
Award Date: 20 March 2007
Jurisdiction: Education Labour Relations Council
Arbitrator: RM Lyster
Subject: Failure to Appoint, Promote, Reinstate or Re-Employ
Issue:
Can an applicant seek leave to amend his referral form (and extend the allegation from procedural unfairness to include substantive unfairness)?
Summary of Facts:
The applicant employee unsuccessfully applied for a promotional post. He then lodged a grievance alleging irregularities in the selection procedure and claiming that he was a more suitable candidate than the person appointed. The applicant lodged a dispute with the Council thereafter, requesting certain documents in the respondent?s possession. In the referral, the applicant complained only of a procedural irregularity.
The matter came on for hearing and the respondent opposed the application, claiming it was a "fishing expedition?. The Commissioner ordered the respondent to disclose all documents sought by the applicant, but excluded the application forms and CVs of other applicants to the position, on the basis that the applicant employee?s referral was based only on procedural (and not substantive) irregularity.
The applicant employee then sought leave to amend his referral form. The respondent objected, claiming that it was an attempt to circumvent the commissioner?s earlier ruling on disclosure.
Summary of Award:
The Commissioner noted that neither the CCMA Rules, nor the Rules of the Bargaining Council, provide guidance as to how an applicant may amend what is in effect his statement of claim, that is, his dispute referral. The Council also noted that the fact that these rules are silent does not mean that the applicant may not apply for leave to amend.
The Commissioner acknowledged that arbitration is a civil dispute resolution forum and it is appropriate to look at what approach is used in the civil courts. It was found that in civil practice, a court has a discretion to permit an amendment of pleadings at any time before judgment and amendments are generally allowed where the other party will not be prejudiced and where costs associated with the amendment are borne by the party seeking it.
Reference was then made to Rule 15 of the CCMA Rules, which pertains to certificates and obliges a conciliating commissioner to "identify the nature of the dispute as described in the referral document or as identified by the commissioner during the conciliation process.? The Commissioner found that given this provision, it was the intention of the drafters of the rule that the commissioner should have the right and power to investigate and if necessary to alter or amend the dispute as set out in the referral form.
The Commissioner granted leave to amend the case set out in the referral form (he also considered the merits of the matter and found that the procedural grounds on which the applicant relied were so entwined with substantive grounds that it would be artificial to hear the applicant on one and not the other). The respondent was also ordered to disclose the application forms and CVs of other job applicants, with peculiarly personal information excised. The applicant was ordered to pay the respondent?s costs of the application.

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