Department of Correctional Services v E Van Vuuren (PA6/98) [1999] ZALAC 15 (12 August 1999)

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[1999] ZALAC 15
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Department of Correctional Services v E Van Vuuren (PA6/98) [1999] ZALAC 15; [1999] 11 BLLR 1132 (LAC); (1999) 20 ILJ 2297 (LAC) (12 August 1999)

IN THE LABOUR APPEAL COURT
OF SOUTH AFRICA
HELD AT PORT
ELIZABETH Case No : PA 6/98
In the matter between :
DEPARTMENT OF CORRECTIONAL
SERVICES
Appellant
and
E VAN VUUREN
Respondent
JUDGMENT
FRONEMAN DJP
:
[1] It is perhaps inevitable
that the proposed transition of South Africa to a non-racial,
non-sexist democratic society in terms
of the new constitutional
dispensation will produce its own ironies. Unlike the situation in
George Orwell’s
Animal Farm
, where some became more equal
than others after the revolution, this is a case about some said to
be more unequal than others prior
to the recent constitutional
changes. The relative inequalities of the protagonists involved and
the use of that fact in promoting
people in the employment of the
appellant are what this appeal is about.
[2] The respondent is a white
woman. By all accounts she is a well qualified, able and efficient
employee. She commenced employment
with the appellant in 1984 and
rapidly rose through the ranks. In 1996 she applied for the post of
control educationist at the
St. Albans prison in Port Elizabeth.
After interviewing thirty-one applicants the interviewing panel
recommended only four applicants
for the post. The respondent
headed that list : she was the only one who was strongly
recommended. The decision to make the appointment,
however, was not
the responsibility of the interviewing panel; that decision rested
with the commissioner of correctional services.
He decided not to
appoint the respondent. Instead he appointed a black man.
[3] The respondent,
understandably, was upset and approached the industrial court for
relief on the basis that the failure to appoint
her in the post
amounted to an unfair labour practice. In that tribunal she emerged
successful, but the appellant now seeks to
overturn that finding on
appeal, heard by this Court by virtue of the transitional provisions
of the
Labour Relations Act, no 66 of 1995
.
[4] The basis of the finding
in the industrial court was not that the failure to appoint the
respondent was discriminatory in nature
(it was in fact accepted
that it was not discriminatory in terms of the appellant’s
affirmative action policy). The finding
flowed from a more formal
approach. The presiding officer in the industrial court found that
the precondition for implementation
of the affirmative action
policy, namely registration, had not occurred by the time the
commissioner made his decision. That fact,
he held, precluded the
commissioner from making a decision based on the guidelines set out
in the policy.
[5] In terms of section 9 (G)
of the Correctional Services Act, no 8 of 1959 (“the CSA”), read
with section 2(5) of the Public
Service Act, 1994 (“the PSA”),
the commissioner was competent to decide whom to appoint to the
post. Whether he was competent
to do so by taking into
consideration the guidelines of the unregistered policy is an issue
which calls for an examination of the
provisions of the then
applicable interim Constitution, Act no 200 of 1993 (“the
Constitution”), the PSA, the CSA and the Public
Service Labour
Relations Act, 1994 (“the PSLRA”).
[6] Section 8(2) of the
Constitution prohibits unfair discrimination on the basis of,
amongst others, gender and race. Section
8(3) provides, however,
that the right to equality does not preclude measures “designed to
achieve the adequate protection and
advancement of persons or groups
or categories of persons disadvantaged by unfair discrimination, in
order to enable their full
and equal enjoyment of all rights and
freedoms” (what has thus far been referred to as affirmative
action). This almost symbiotic
relationship between the prohibition
on unfair discrimination on the one hand, and permitting affirmative
discrimination on the
other, is a recurrent theme of further
provisions of, or flowing from, the Constitution.
[7] The Constitution envisages
a public service structured in terms of a law to provide effective
public administration (section
212(1)). The public service must be
non-partisan, career-orientated and function according to fair and
equitable principles (section
212(1)(a)) and must serve all members
of the public in an unbiased and impartial manner (section
212(1)(c)). Employment in the
public service should be accessible
to all South African citizens on the general basis that appointments
should be made to ensure
efficiency (compare section 212(3) and
(4)). Notwithstanding all this, however, the public administration
must be broadly representative
of the South African community
(section 212(2)(b) and (5)).
[8] The vehicle chosen to
effect these goals is the Public Service Commission (“the PSC”).
Section 209 of the Constitution
provides for its establishment and
section 210 for its powers and functions. In terms of section
210(1)(a)(iii) the PSC is competent
to give directions for
appointments and promotions in the public service and in terms of
section 210(3) these directions should
generally be implemented
within six months.
[9] These constitutional
injunctions find their expression in the PSA. Section 3 of the PSA
provides that the PSC shall exercise
its powers and functions in
accordance with the provisions of section 212 of the Constitution.
It may give directions regarding
measures to promote the objectives
of section 212(2) of the Constitution in accordance with section
212(5) of the Constitution
(section 3(5)(a)(vii)), notwithstanding
the provisions of section 11 of the PSA. Section 11 of the PSA
reads as follows :
“
(1) In the
making of any appointment or the filling of any post in the public
service -
no person who
qualifies for the appointment, transfer or promotion concerned
shall be favoured or prejudiced;
only the
qualifications, level of training, merit, efficiency and
suitability of the persons... and such conditions as may be
determined or prescribed or as may be directed or recommended by
the Commission... shall be taken into account.”
[10] In terms of section 5(7)
of the PSA a recommendation, function or decision which relates to a
matter of mutual interest under
section 13 of the PSLRA may only be
made in terms of an agreement negotiated on such a matter in the
relevant chamber of the Public
Service Bargaining Council.
Notwithstanding this section 5(8) provides that :
“
(a) the
Commission or.... person mentioned in subsection (7) may deal with
the case of an individual in terms of... this Act or
any other
applicable law... : Provided that ....[it]...shall not derogate from
or annul such an agreement or the collective relationship,
or
reduce.... or deprive such individual of his or her remuneration,
service benefits or worker compensation, except in accordance
with
the provisions of section 34 of this Act;
the Commission
or... may... implement the last offer on a specific matter made by
the employer in the... chamber if a deadlock
in negotiations is
reached...”
[11] The broad scheme of these
provisions seems to be reasonably clear. What is sought is an
efficient public service open to all
citizens, but without
sacrificing the equalising principle of favouring those who, by
reason of past disadvantage, may have been
unable to compete on
equal terms. The PSC is entrusted to attain this goal by issuing
recommendations or directions. Where these
relate to matters of
mutual interest between the state as employer and its employees the
recommendations or directions must preferably
be the result of
negotiation arrived at by collective bargaining. The collective
bargaining process may, however, be augmented
in certain prescribed
situations where individuals are concerned, or where deadlock is
reached.
[12] For the purposes of this
appeal it is not necessary to go into the detail of what steps were
taken by the PSC and the appellant
to implement the demands of the
Constitution and the PSA. Suffice it to state that the appellant’s
policy was negotiated and
agreed at through the necessary collective
bargaining process and the result has not been attacked on appeal as
being unfair or
unconstitutional. What the respondent did argue,
however, was that the presiding officer in the industrial court was
correct in
finding that it was an unfair labour practice to
implement the policy guidelines in the individual case of the
respondent prior
to the necessary registration of the policy.
[13] In essence this amounts
to an argument that the commissioner exceeded his statutory
competence or powers in making the appointment
he did and by failing
to appoint the respondent to the post. Assuming, without deciding,
that it was competent for the industrial
court to make such a
finding (in effect a review of the commissioner’s decision), it
nevertheless appears that the provisions
of section 5(8)(a) of the
PSA are applicable (apart from any other possible legislative
provisions). The commissioner’s decision
did not derogate from,
or annul the agreement reached in collective bargaining. All it did
was to anticipate the application of
its terms in a particular
individual’s case. There was no evidence that this adversely
affected the collective bargaining relationship,
nor that it reduced
the respondent’s remuneration, service benefits or worker
compensation; the factors mentioned in the section
which might have
precluded the commissioner from validly taking the decision he did.
[14] The commissioner thus
acted within his competence or powers when he made the decision.
His evidence at the hearing discloses
that he did not slavishly
adhere to a fixed policy or principle in making his final decision
but that, to the contrary, he gave
careful consideration to the
particular circumstances of the respondent, the demands for
representivity in that particular post
in the Eastern Cape and other
relevant factors. That the outcome was to a certain extent dictated
by weighing up the comparative
past inequalities suffered by the
respondent and the other applicants is more of a reflection on the
remaining strangeness of our
society, rather than an indication of
arbitrariness on his part.
[15] In the result the appeal
succeeds with costs, including the costs of two counsel. The order
in the industrial court is set
aside and replaced by the following :
“
The application is
dismissed”.
FRONEMAN
DJP
I
agree,
CONRADIE
JA
I
agree,
NICHOLSON
JA
Date of hearing : !8 June
1999
Date
of judgment :
Appellant’s representative
: Mr M J Lowe S.C. and Mr G Bloem instructed by The State Attorney
Respondent’s representative
: Mr J G Grogan instructed by Chris Baker & Associates