The Labour Court refused the application after finding that the special plea relating to jurisdiction could not be upheld. The applicant based her claim on s 77(3) of the BCEA and argued that she was entitled to an order declaring her to be employed full-time as a ‘political’ appointee on an indefinite basis, despite being informed that her employment would terminate when the chief whip was no longer in office. Lallie J held that the purported appointment was null and void and a declaratory order could not be granted which would force the employer to appoint an employee contrary to the employer’s recruitment policies and practices.
Xako v Nelson Mandela Bay Municipality (P304/13) [2015] ZALCPE 50; [2015] 12 BLLR 1276 (LC) (1 October 2015) per Lallie J.
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[15] None of the omissions by the respondent’s officials can sanitize Nolutshungu’s irregular conduct in issuing the letter of appointment. The respondent’s submission that the Organisation Establishment Policy which was approved on 10 November 2010 codified a practice which had always been applied in filling political positions was not challenged. Nolutshungu knew that the applicant could either be appointed in terms of the recruitment policy or in terms of the practice for filling political positions. When he followed neither procedure in issuing the letter of appointment, he caused the respondent to act irregularly and beyond its authority. The principle of estoppel can therefore not be relied upon to remedy his actions. In this regard see City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Lttd 2008 (3) SA 1 (SCA). This court may not grant an order which would allow the respondent to appoint an employee contrary to the respondent’s recruitment policies and practices. This application can therefore not succeed.