Eskom Holdings SOC Ltd v Commission For Conciliation, Mediation and Arbitration & others [2026] ZALAC 46

Date of Judgment & Seat of Court: 22 October 2026, Labour Appeal Court

Case No: A2025/183459

Name of Judge(s): Gqamana AJA (Nkutha-Nkontwana JA and Masipa AJA concurring)

Summary of Factual Matrix:

In August 2020 Eskom advertised the post of Chief Advisor: Organisational Design and Workforce Planning, stipulating as minimum requirements a degree in Human Resources, Social Sciences or Behavioural Science at NQF 7 and seven years' relevant experience. The employee, who holds a BCom in Informatics and an LLB, applied but was excluded from the shortlist solely on the qualification requirement. He referred an unfair labour practice dispute relating to promotion to the CCMA, where the commissioner found that he met neither requirement and that no unfair labour practice had been committed.

On an unopposed review, the Labour Court set the award aside and granted the employee compensation equal to six months' remuneration at G17 level. With leave of the Labour Appeal Court, Eskom appealed, contending that the Labour Court had misapplied the review test, had granted compensation that was not sought in the notice of motion, and that six months' compensation was in any event not just and equitable.

Summary of Findings:

[8] ‘As a point of departure, it is a trite principle that in application proceedings, an applicant must set out the grounds of review with sufficient particularity in the founding papers.[2]’

[11] ‘The first question for consideration is whether the Labour Court applied the review test correctly. It is trite that the review test as set out in Sidumo,[3] is that: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”’

[12] ‘The bounds of reasonableness are too wide. A review court should not readily interfere with an arbitration award unless the arbitrator misconstrued the nature of the enquiry and the outcome is unreasonable.’

[13] ‘The employee’s review application was based on the contention that the commissioner committed obvious errors, but it was not demonstrated on how those errors rendered the outcome unreasonable.’

[14] ‘Recently, this Court in Makuleni,[5] held that, the review court must take the award and read it carefully in the context of the evidence presented and only if the conclusion is untenable would it be permitted to review and set it aside. Otherwise, if the decision is reasonable, it must stay away and leave the award intact.’

[15] ‘A thorough reading of the award and the record in this appeal demonstrates that the commissioner asked the relevant questions, he understood the nature of the enquiry before him, he considered the applicable legal principles and applied them to the facts and he arrived at an outcome based on the evidence which was properly placed before him. In summary, that evidence proved that the employee did not meet the qualification requirement. It was conceded by the employee that he does not hold any of the stipulated qualifications as per the advertisement. As a matter of fact, he holds a B.Com in Informatics degree.’

[16] ‘It escapes me, in light of the evidence herein, how the Labour Court came to the conclusion that the arbitration award was unreasonable. The interpretation of the qualification requirement was not an issue. The qualification requirement as set out in the advertisement was understood by all the parties. Hence it was the employee’s case at the arbitration that the exclusion of his degree was motivated by ulterior motive. The Labour Court was bound by the case pleaded.[6] It was not open to the Labour Court to re-assess the advertisement.’

[17] ‘In the circumstances, the Labour Court misdirected itself in that it failed to apply correctly the review test.’

[18] ‘The purpose of pleadings is to define the issues between the parties and to afford each party adequate notice of the case it is required to meet.[7] […] A general prayer for further or alternative relief does not, without more, authorise the granting of substantially different relief that was neither foreshadowed in the application nor supported by the evidence.’

[19] ‘In the present matter, the employee’s notice of motion did not expressly seek compensation. Although the transcript of the Labour Court proceedings records that the employee submitted a draft order which the Labour Court accepted, there is no indication on the material identified that the draft order was served on Eskom or that Eskom was otherwise informed that compensation was contemplated. Nor does the record establish that Eskom was afforded a reasonable opportunity to address the proposed relief. The fact that the review application proceeded unopposed did not relieve the Labour Court of its obligation to satisfy itself that the relief granted was properly sought and supported by evidence. Furthermore, even if the arbitration award was liable to be reviewed and set aside, the substitution of that award with an order for compensation required a proper factual and legal foundation. The Labour Court was required to identify the unfair conduct relating to promotion that justified compensation and to explain why an award equivalent to six months’ remuneration was just and equitable. An incorrect interpretation of the advertised minimum qualification requirements did not, without more, justify the award of compensation.’

[20] ‘Furthermore, there must be evidence which shows that compensation is justified. In the absence of evidence that the employee was treated unfairly, no just and equitable basis existed to award him payment of compensation.’

[21] ‘For all the above reasons, the judgement and order is indefensible and the appeal must succeed. With regard to costs, on the consideration of law and fairness, this is an appropriate matter that there should be no order of costs.’

Relief: The appeal was upheld with no order as to costs. The Labour Court's order, save for the grant of condonation, was set aside and replaced with an order dismissing the review application in respect of the arbitration award of 25 September 2023, with no order as to costs.

Judgment on SAFLII