In this case, following Eskom’s organisational review, the position of Senior Business Enablement Manager (“the Position”) was created. In order to implement the adopted structure, in 2016 Eskom appointed an employee, Ms Anusha Govender (“Ms Govender”) to act in the Position while the recruitment process was underway. She acted in the Position from 1 September 2016 until 17 May 2017. During this period, the position was advertised.

Ms Govender applied, was shortlisted, and was interviewed for the position. The interviewing panel found that Ms Christine Mqcina (“Ms Mqcina”) scored higher than Ms Govender during the interview process and recommended that she be appointed to the Position.

In March 2017, Ms Govender was informed that she was unsuccessful in her application for the Position and requested “detailed feedback” on her application/interview results to identify her shortcomings. After two more emails with the same request with no success, and a formal grievance that was subsequently dismissed, Ms Govender turned to the CCMA.

The CCMA found that the non-appointment of Ms Govender by Eskom to the position constituted an unfair labour practice. It also found that Eskom had created a reasonable legitimate expectation that Ms Govender would be permanently appointed to the position because she had been referred to as being in the Position, and she received a bonus while she was acting in that Position. Eskom brought an application to review the award on the basis that, inter alia, no legitimate expectation had been created and that its recruitment process was fair and in line with its policy.

The Labour Court found that the commissioner misapplied the law applicable to legitimate expectation. The Court held that the mere fact that Ms Govender was referred to as being in the Position did not satisfy the test for legitimate expectation in law. The correct test, as held in Civil Service Unions v Minister of the Civil Service [1984] 3Al ER 935 (HL), was restated as follows:

“Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”

The Labour Court concluded that there was no evidence of a legitimate expectation created by Eskom that Ms Govender would be appointed to the Position. As a result, the review was upheld and the award was set aside.

In a concluding remark, the Labour Court stated as follows:

“Recruitment and appointments are exclusive preserves of the employer. When an employer appoints one of its employees to act in a vacant position or in another employee’s stead, there is no automatic obligation for permanent appointment…”

Sight should not be lost of the fact that recruitment and appointments are the prerogatives of an employer. Whether an employee has acted in a certain position is not, on its own, sufficient to establish a legitimate expectation on behalf of that employee. Disputes of this nature are specifically fact-dependent, and specialist legal advice should be taken when bringing or defending these disputes.