Cop’s 10-year battle for justice

TEN years after he was overlooked for a promotion, a Durban police officer has won his case in the Labour Court.

The court has ruled that Kamalanathan Govender be appointed to the rank of Lieutenant-Labour Court Acting Judge Omphemetse Mooki, in a judgment this month, ordered that Govender be granted a promotion and that the promotion be made retrospective to December 2005.

The court also ordered that the police pay Govender all financial benefits associated with the rank from 2005.

According to a parliamentary response from the Police Ministry in 2010, the basic annual salary of a lieutenantcolonel then was R238 872.

In 2005 Govender, who was then a captain, applied for two positions of crime prevention commander, one based at Hillcrest and the other at Umlazi.

Both positions had the same job description and requirements and one panel, with the same presiding official, considered applications for both posts.

Govender made the preferred list for one of the posts but was not appointed because of “equity considerations”, according to the judgment.

In regard to the other post, the panel did not screen, shortlist or evaluate his application.

Govender lodged a grievance that went through an internal process for five years before it was referred to the Safety and Security Sectoral Bargaining Council.

When the matter came before the council’s commissioner, she ruled in 2013 that the police had committed an unfair labour practice and awarded Govender two months of compensation.

The commissioner ruled that compensation was the appropriate award given the amount of time that had lapsed since the position had been advertised, and that another officer had been promoted.

Govender took the matter to the Labour Court to have the compensation award reviewed.

The police opposed the review and asked the court to set aside the award and dismiss the review.

The police argued that two different panels had reviewed the applications and that there was “overwhelming evidence” against Govender that had been ignored by the commissioner.

The acting judge disagreed with the commissioner’s view and, quoting case law, said that “victims of a blatant unfair labour practice cannot be left without a remedy”.

The court said even though the position was filled, this did not stop the police from promoting the aggrieved person.

The court also found that the opposition by the police was intended to “frustrate” the process and the final determination of the matter.

Judge Mooki said the police did not provide reasons why Govender was not considered for the post and did not dispute that he had demonstrated that he was the more “meritorious candidate”.

“The irregularities and unfairness in not shortlisting the applicant, the lack of justification by the police, the undisputed evidence that he was the superior candidate, all taken together, qualified the applicant for a promotion,” he said.