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[2008] ZALAC 10
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Dudley v City of Cape Town and Another (CA 1/05) [2008] ZALAC 10; [2008] 12 BLLR 1155 (LAC); (2008) 29 ILJ 2685 (LAC) (21 August 2008)
4
I
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: CA 1/05
In the matter between
Lilian Dudley
Appellant
And
The City of Cape Town 1
st
Respondent
Ivan Toms 2
nd
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO
JP
Introduction
[1] This is an appeal from a judgment
of the Labour Court in which the Labour Court, per Tip AJ, upheld
four exceptions, referred
to as being based on Ground
s
B, C, D and E taken by the first respondent in that Court to the
appellant’s statement of claim in proceedings instituted
by the
appellant against the first and second respondents. Leave to appeal
to this Court against the judgement of the Labour Court
was granted
by that Court. This appeal relates to the exceptions based on Grounds
B and C about which more will be said later in
this judgement.
[2
] One
question for determination is whether an applicant for employment who
is a member of “the designated group” as
defined in
section 1 of the Employment Equity Act,1998 (Act 55 of 1998) (“
the
EEA
”), who
complains that a designated employer as defined in the EEA to whom
such applicant for employment had made an application
for employment
has failed to comply with one or other of its obligations relating to
affirmative action under Chapter III of the
EEA may institute court
proceedings to enforce such obligations prior to the exhaustion of
the monitoring and enforcement procedure
provided for in Chapter V of
the EEA. This question relates to the exception based on Ground C.
The obligations referred to in
this regard are a designated
employer’s obligations to prepare an employment equity plan
and/or to adhere to employment equity
principles and/or to comply
with its other specific obligations in terms of Chapter III of the
EEA. Another question to be decided
is whether or not a designated
employer’s failure to accord such applicant for employment
preference in the filling of a
vacant position constitutes unfair
discrimination. This question relates to the exception based on
Ground B. Before these questions
can be considered, it is necessary
to refer to the facts of the case.
The
facts
[3
] The
facts of this case were set out in great detail in paragraphs 7 to
13.3 the judgment of the Labour Court. I do not propose
to repeat
that exercise but propose to simply quote that part of the judgment
of the Labour Court in which that Court set out the
facts of this
case.The reference to the applicant therein is a reference to the
appellant in this appeal. It reads as follows:
“
[7] In February 1998 the applicant was
appointed to the position of Specialist: Health Service Support on
the staff of the Cape
Metropolitan Council (“CMC”). In
December 1999 she was seconded to the position Acting Head: Municipal
Health Service
within the CMC. Her responsibilities in that position
embraced a number of policy, planning and research matters.
[8] During December 2000 the CMC and a number of
municipal substructures merged to become the City. As already
indicated, the applicant
was appointed to the post of Interim
Manager: Health in February 2001. This was one of sixteen posts of
Interim Manager: Health
in February 2001. This was one of sixteen
posts which together formed the City’s interim executive
management team. There
was only one woman on this team, being the
applicant; she was also one of its four black members. She was
responsible inter alia
for the overall management and strategic
direction of the City’s medical services as well as budget and
business planning
processes.
[9] When the position of Director: City Health was
advertised in November 2001, its principal function was described as
being “to
ensure the efficient management of Health Services
through an effective District Management system. According to the
statement
of case, this position was in all material respects the
same as the position of Interim Manager: Health which the applicant
occupied
at the time.
[10] After her unsuccessful application for the
position of Director: City Health, the applicant wrote to the city
manager on 24
December 2001 recording her view that she was not only
properly qualified but had demonstrated her competence whilst in the
positions
previously held by her. She requested a number of details
relating to the appointment process:
1. What were the competencies for the position?
Which of the competencies did I lack?
2. What were the required qualifications for the
position?
In which respects do my qualifications not meet
these requirements?
3. What were my scores for the psychometric
assessment?
3.1 Were my scores higher or lower than the
successful candidate?
4. Was due consideration given to the provisions of
the Employment Equity Act in terms of this appointment?
If yes, why were these provisions not followed?
5. Were the guidelines provided by the Human
Resources Department for this appointment followed? If not, kindly
provide the reasons
for this.
In addition, please provide me with a copy of the
recruitment policy which guided this appointment.”
[11]
In his reply dated 8 January
2002, the city manager set out the City’s position in the
following terms:
The competencies/criteria identified as well as
assessed for this position are as outlined in the application pack.
It is evident from the panel interview that you did
not ‘lack’ in any of the areas assessed: the scores
obtained are
all on a competent level.
The City has targeted safety and health as critical
deliverables; consequently the requirement for the behavioural
competencies
in the health portfolio demanded a level above
competence. This need was further supported by the complexity of the
evolving health
service provided by and still to be provided by the
City of Cape Town, as well as the fact that HIV/AIDS and TB is one of
the key
priorities of this Council.
Drawing on extensive research in the field of
competency assessment, it is accepted that, at strategic managerial
level, all applicants
need professional/technical competence,
qualifications and prior experience. However, these are not the prime
distinguishing criteria
but rather it is the behavioural competence
component that serves as the distinguishing factor in selection at
this level. Compared
to the appointed candidate, your ratings on
these factors were consistently lower.
The critical nature of this position demanded a
higher level of competence and hence the appointment was guided by
the service delivery
requirements of the position.
With specific reference to your questions posed:
1. The competencies/criteria identified, as well as
assessed for this position are as outlined in the application pack.
It is evident from the panel interview that you did
not ‘lack’ in any of the areas assessed; the scores
obtained
are all on a competent level.
2. As stated in the advertisement an ‘appropriate
tertiary qualification’ was asked for.
Your qualification most certainly met the required
standard.
3. In terms of the ‘psychometric’
assessment, a one-on-one feedback session will be held with yourself.
This session
will be arranged by Mr Wim Myber gh as per his contract
with the City.
The above mentioned session refers.
4. Due consideration was given to Equity and
communicated to the organization and applied to the appointment
process. It is really
important to stress an organisational approach
to transformation rather than looking at a post in isolation.
Appointments for the
entire Directorate were looked at in respect of
reaching the Equity Target and here 4 out of 6 appointments are from
previously
disadvantaged groups.
5. Processes and procedures used during these
appointments were in accordance with the adopted Recruitment and
Selection Policy.
A copy of the said document is attached as per your
request.
[12] The Recruitment and Selection Policy referred to
in this letter was adopted by the City with effect from August 2000.
It includes
a number of provisions relating to affirmative action and
employment equity. I recite several of them
as set out in the applicant’s statement
of case:
“
2.4 All aspects of the staffing, structuring,
recruitment, selection, interviewing and appointment of employees
will be non-discriminatory
and will afford applicants equal
opportunity to compete for vacant positions, except as provided in
this policy with reference
to affirmative action and employment
equity.
2.6 The City of Cape Town is an employment equity
employer and, as such, preference will be given to suitably qualified
candidates
who are members of designated groups as defined in
section
1
of the
Employment Equity Act of 1998
as consisting of black people,
women and people with disabilities.
Elimination of unfair discrimination
3.1 The City of Cape Town shall take steps to promote
equal opportunity in the workplace by eliminating unfair
discrimination in
any employment policy or practice …
Affirmative Action
3.5 As a designated employer the City of Cape Town
must, in order to achieve employment equity, implement affirmative
action measures
for people from designated groups as defined in
section 1
of the
Employment Equity Act of 1998
‘Designated
groups’ means black people, women and people with disabilities…
Affirmative action measures are measures designed
to ensure that suitably qualified people from designated groups
have equal
employment opportunities and are equitably represented
in all occupational categories and levels in the workplace of the
employer.
Affirmative action measures include, but are not
limited to, the following:
measures to identify and eliminate employment
barriers, including unfair discrimination, which adversely affect
people from designated
groups;
measures designed to further diversify in the
workforce based on equal dignity and respect of all people;
making reasonable accommodation for people from
designated groups in order to ensure that they enjoy equal
opportunities and are
equitably represented in the workplace of the
employer;
measures to ensure the equitable representation of
suitably qualified people from designated groups in all occupational
levels
in the workforce of the employer;…
General principles governing selection
:
Selection criteria shall be objective and related to
the inherent requirements of the job and realistic future needs of
the organisation.
The central guiding principle for selection shall be
competence in relation to the inherent requirements of the job
provided that
selection shall favour, as determined by the targets,
suitably qualified applicants as defined in
section 20(3)
of the
Employment Equity Act.
The
selection decision
The selection decision is based on the assessment of
the candidates in conjunction with
section 20(3)
and particularly
20(3)(d) of the
Employment Equity Act and
in the context of
organizational requirements.
Targets, based on the economically active population
of the metropolitan area, will be set to guide the preferential order
of appointment
within the organization.
[13]
Aspects of the City’s
senior management levels have been described by the applicant in her
statement of case in the following
way:
13.1 The city manager and the entire ‘first
reporting line’ of top management were appointed before the
position of
Director: City Health was advertised. The “first
reporting line” consists of ten executive directors, also known
as
strategic executives. They are all male. The city manager and all
but two of these strategic executives are white. On this basis,
the
applicant avers that women, black persons and, in particular, black
women were not equitably represented in the City’s
‘first
reporting line’.
13.2 The post of Director: City Health falls within
the ‘second reporting line’. The applicant alleges that
this level
of management also did not comprise an equitable quotient
of women and black persons. She further alleges that 51 positions
fall
into this management category and that, ultimately, 42 were
filled by men and nine were women, of whom four were black. In all,
26 of these positions were filled by white persons.
13.3 The applicant alleges that the City has failed
to comply not only with the requirements of the
Employment Equity Act
55 of the
1998 (“the EEA”) but also with its own policy
in that, at the time of the appointment here at issue, it had not yet
set targets to serve as guidance for the preferential appointment of
previously disadvantaged individuals. She alleges also that
the City
had not prepared an employment equity plan, as required by
section 20
of the EEA”.
[4
] It
is necessary to quote in full paragraphs 34 to 46 of the appellant’s
statement of claim because the areas of the appellant’s
statement of claim in respect of which the first respondent took
exception fall within those paragraphs. Paragraphs 34-46 read
thus:
34
.
The
criteria applied by the City in selecting [the second respondent] and
not the Applicant for appointment to the post and the
manner in which
they were applied:
resulted in direct discrimination against the
Applicant;
alternatively
reflected a bias in favour of white persons and/or
men and against black persons and/or women.
But for the fact that the
Applicant is a black woman, she would have been selected for
appointment to post.
36.
The
Applicant met all the advertised requirements for the post and was
suitably qualified therefore, in terms of
s20(3)
of the EEA and in
terms of the City’s policy.
37.
The
selection requirement alleged by the City of “above competence”
in respect of “the behavioural competencies”
did not
justify the selection of Toms and the non-selection of the Applicant.
It was not an advertised or legitimate requirement
for the post. To
the extent, if any, that it was permissible to have regard to this
alleged requirement, the Applicant in any event,
had the necessary
level of competence.
38.
The City’s decision to appoint Toms and not to appoint the
Applicant breached its obligation:
38.1
in
terms of
section 5
of the EEA, to take steps to promote equal
opportunity in the workplace by eliminating unfair discrimination in
any employment
policy or practice;
38.2
in
terms of
section 6
of the EEA not to unfairly discriminate, directly
or indirectly, against an employee in any employment policy or
practice on the
grounds of race, ethnic origin or colour and/or on
the ground of gender or sex.
Affirmative Action
39. The City’s
decision to appoint [the second respondent] and not the Applicant,
breached its obligation to implement affirmative
action measures in
terms of Chapter III of the
Employment Equity Act, in
particular its
obligations in terms of
section 13(1)
read with
sections 15(1)
,
15
(2)(d),
15
(3),
20
(1),
20
(2),
20
(3),
20
(4) and
20
(5) thereof.
40. The said decision was also
in breach of the affirmative action obligation set out in the City’s
own policy as referred
to above, in particular in that it failed to
prefer her for appointment, notwithstanding that she was suitably
qualified and a
black woman.
41. In addition, the aforesaid
breaches of the City’s affirmative action obligation amounted
to discrimination on the basis
of race and/or gender in breach of
section 6
of the EEA.
Constitutional obligations
42
As
an organ of state, the City is obliged in terms of section 7(2) of
the Constitution of the Republic of South Africa, Act No 108
of 1996
(“the Constitution”) to respect, protect, promote and
fulfil the rights in the Bill of Rights.
43 .
The
City’s failure to implement affirmative action obligations and
to appoint the applicant.
breached its obligation to respect, protect,
promote and fulfil the Applicant’s right to equality,
including her right
to the full and equal enjoyment of all rights
and freedoms, as contemplated in section 9(2) of the Constitution;
constituted unfair discrimination on the ground of
gender and/or race in that, particular, the Applicant was a better
candidate
than Toms;
infringed the Applicant’s constitutional
right to fair labour practices (in terms of section 23(1) of the
Constitution);
and
infringed her constitutional right to dignity, in
terms of section 10 of the Constitution.
Unfair labour practice
The procedure which resulted
in the decision to appoint [the second respondent] and not the
Applicant:
failed to comply with the City’s own policy;
was arbitrary, irrational, unprofessional and
unfair to the Applicant;
was discriminatory against black women and failed
to give effect to the City’s affirmative action obligations.
The City’s failure to appoint the Applicant
and its decision to appoint Toms constituted an unfair labour
practice in terms
of item 2(1)(b) of Schedule 7 of the Labour
Relations Act, No 66 of 1995 (“the LRA”).
In as much as the facts pertaining to this cause of
action directly overlap with the facts pertaining to the other
causes of action
referred to above, the Applicant contends that it
is expedient for this Honourable Court to arbitrate this dispute
pursuant to
its powers in terms of section 158(2)(b) of the LRA.”
[5
] It
will be seen from the above that the appellant’s alleged causes
of action were:
unfair discrimination;
affirmative action;
constitutional obligations, and;
unfair labour practice.
[6
] In
the judgment of the Labour Court it was said that Ground A of the
first respondent’s exception was not persisted in.
For that
reason nothing more needs to be said about it. As I have already
pointed out, the Labour Court upheld the exception on
the bases of
Grounds B, C, D and E. In its Heads of Argument in this Court the
first respondent pointed out that the appellant
only appeals against
the decision of the Labour Court relating to Grounds B and C of the
exception. The appellant did not take
issue with this statement.
Accordingly, the appeal will be dealt with on the basis that it
concerns only Grounds B and C of the
first respondent’s
exception to the appellant’s statement of claim. I propose to
quote Grounds B and C of the exception
in full. They read as
follows:-
“
Ground
B
In her Statement of Case the applicant alleges inter
alia, the following
That she was a better candidate than the second
respondent (para 43.2);
But for the fact that the applicant is a black
woman, she would have been appointed to the post (para 35);
The first respondent’s selection of the
second respondent and not the applicant reflected a bias by the
first respondent
in favour of white persons and/or men and against
black persons and/or women (para 34.2);
The first respondent’s conduct as aforesaid
constituted direct discrimination (para 34.1);
That in the circumstances the second respondent’s
appointment should be set aside and the applicant appointed to the
position
(para 47.1 to 47.2.)
On the other hand, the applicant also alleges the
following:
First respondent was obliged to implement
affirmative action measures in terms of the EEA and because its own
internal policies
required it to so do (paras 38, 39, 40);
Applicant should have been given
preference over second respondent because she is black and a woman
(para 40);
In failing to give her preference first respondent
breached its obligation to implement affirmative action (para 40);
First respondent’s failure to apply
affirmative action in applicant’s favour amounted to
discrimination on the basis
of race and/or gender in breach of
section 6 of the EEA (para 41).
The first respondent submits that
an employer’s failure to apply affirmative action by failing
to advantage or prefer a
member of a designated group who has
applied for employment cannot in law constitute unfair
discrimination in terms of sections
6.(1) and (2) of the EEA.
The applicant’s claim as referred to in
paragraphs 11.1 to 11.4 above accordingly discloses no cause of
action.
Ground C
The applicant inter alia alleges as follows:
The first respondent, both in respect of the
applicant’s appointment and generally, failed to prepare a
proper employment
equity plan and/or to adhere to employment equity
principles and/or to comply with its obligations in terms of
Chapter III
of the EEA. (See inter alia paras 32, 33 and 39).
In the circumstances the applicant seeks an order
directing the respondent to:
14.2.1 take such steps as the court may direct to
prevent the same unfair discrimination or a similar practice
occurring in future
in respect of other employees (para 47.5.1);
14.2.2 prepare and implement an
employment equity plan which will achieve reasonable progress towards
employment equity in the respondent’s
workforce (para 47.5.2).
15. The first respondent submits that this Court has
no jurisdiction to entertain a claim such as that referred to in
paragraphs
14.1 and 14.2 above in circumstances where the complainant
has failed to exhaust the monitoring, enforcement and compliance
procedures
set out in Chapter V of the EEA.
16. In either event the applicant
pleads no facts in support of her alleged entitlement to seek relief
on behalf of persons other
than herself. The first respondent denies
that she has the
locus
standi
to so
do.”
[7] Part of the appellant’s case was that the
first respondent was obliged in terms of the EEA or in terms of the
first respondent’s
recruitment and selection policy to prefer
her to the second respondent when it was considering who had to be
appointed to the
position and that its failure to prefer her
constituted unfair discrimination in breach of the EEA and in breach
of its own recruitment
and employment policy.
[8
] It
will be seen from the terms of the first respondent’s exception
under Ground B that its point was that the appellant’s
claim as
set out in paras 11.1 to 11.4 of her statement of claim disclosed no
cause of action because in law an employer’s
failure to apply
affirmative action which happens when the employer fails to advantage
or prefer a member of a designated group
who has applied for
employment cannot constitute unfair discrimination in terms of
section 6(1) and (2) of the EEA.
[9
] With
regard to Ground C, the appellant’s case was that the first
respondent was obliged to carry out its obligations set
out in
Chapter III of the EEA in respect of the preparation of a proper
employment equity plan and/or to adhere to employment equity
principles and/or to comply with its obligations in terms of chapter
III of the EEA. The appellant sought an order compelling the
appellant to take the necessary steps to prevent “
the
same unfair discrimination or a similar practice and to prepare and
implement an employment equity plan which will achieve reasonable
progress towards employment equity in the first respondent’s
workplace
”.It
will also have been seen that the first respondent’s exception
to this was that the appellant had no right to institute
court
proceedings to enforce any of the affirmative obligations of a
designated employer under chapter III of the EEA before the
exhaustion of the monitoring and enforcement procedure provided for
in Chapter V of the EEA.
[10
] With
regard to Ground C, it is important to note the terms of the
exception taken by the first respondent. The terms of the exception
are that the appellant has no right in law to institute Court
proceedings for relief based on a complaint that a designated
employer
has acted in breach of its obligations under chapter III of
the EEA until and unless the monitoring and enforcement procedure
provided
for in Chapter V of the EEA has been exhausted. The
appellant contended that she had such a right. The Labour Court
upheld the
first respondent’s exception in this regard.
Decision of the Labour Court
[11
] The
Labour Court dealt with Grounds B and C together from par 40 to par
80 of its judgment. It gave the issues much consideration.
I do not
consider it necessary to set out the Labour Court’s reasons for
its conclusion in this regard. Those reasons can
be read in the
Labour Court’s judgment which is reported as
Dudley
v City of Cape Town (2004) 25 ILJ 305 (LC).
The
Labour Court, as already stated, upheld all the first respondent’s
exceptions including those based on Grounds B and C.
Subsequent to
the judgment of the Labour Court, the Appellant made an application
to the Constitutional Court for leave to appeal
to that Court against
the judgment of the Labour Court. The Constitutional Court dismissed
that application and insisted that the
Appellant first pursue an
appeal to this Court before she could approach the Constitutional
Court. The judgment of the Constitutional
Court in this regard is
reported as
Dudley v
City of Cape Town and Another
(2004) 7 BLLR 623
(CC)
.
The
appeal
[12
] A
reading of the first respondent’s terms of its exception as
based on Grounds B and C as set out earlier in this judgment
will
have revealed that they both relate to those parts of the appellant’s
claim which relates in one way or another to chapter
III of the EEA.
The one based on Ground B is that an employer’s failure to
apply affirmative action in failing to prefer
or advantage a member
of a designated group who has applied for employment cannot in law
constitute an unfair discrimination in
terms of sec 6(1) and (2) of
the EEA. The other one which is based on Ground C is that the
appellant has no right to institute
court proceedings based on the
employer’s alleged breach of its obligations under chapter III
of the EEA without first exhausting
the monitoring and enforcement
procedures provided for in chapter V of the EEA. It is convenient to
start with the exception based
on Ground C and thereafter deal with
the one based on Ground B.
The
Exception based on Ground C
[13
] A
consideration of the exception based on Ground C requires a
consideration of various provisions of the EEA.
[
14] The
question that I consider now is the first respondent’s
exception that it is not competent to institute court proceedings
to
enforce a designated employer’s obligations relating to
affirmative action under Chapter III of the EEA until the monitoring
and enforcement proceedings provided for in Chapter V of the EEA have
been exhausted. In terms of sec 1 of the EEA the term “
designated
group
” means
black people, women and people with disabilities. In sec 1 there is
also a definition of the term “
designated
employer
.”
For present purposes it is not really necessary to quote that
definition. It suffices to say that the first respondent
falls within
that definition The purpose of the EEA is given in sec 2 as being:
“
to achieve
equity in the workplace …”
The
methods provided for in sec 2 to achieve that purpose are given as
being:
“
(a) promoting equal opportunity and fair
treatment in employment through the elimination of unfair
discrimination; and
implementing affirmative action measures to redress
the disadvantages in employment experienced by designated groups, in
order
to ensure their equitable representation in all occupational
categories and levels in the workplace.”
[
15] Chapter
II of the EEA deals with unfair discrimination in general and bears
the heading: “
Prohibition
of unfair discrimination
.”
Chapter III deals with, and bears the heading,: “
affirmative
action
”.
Chapter IV deals with the Commission for Employment Equity. Chapter V
deals with monitoring, enforcement and legal proceedings.
[
16] Sec
5
– which falls under chapter II – bears the heading:
“
Elimination
of unfair discrimination.”
It reads:
“
Every employer must take steps to promote
equal opportunity in the workplace by eliminating unfair
discrimination in any employment
policy or practice.”
Sec
6 of the EEA bears the heading:
“
Prohibition of unfair
discrimination.”
Sec 6(1), and (2) read as follows:
“
6. Prohibition of unfair discrimination
No person may unfairly
discriminate, directly or indirectly, against an employee, in any
employment policy or practice, on one
or more grounds, including
race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour,
sexual orientation, age,
disability, religion, HIV status, conscience, belief, political
opinion, culture, language and birth.
It is not unfair discrimination to –
take affirmative action measures consistent with
the purpose of this Act; or
distinguish, exclude
or prefer any person on the basis of an inherent requirement of a
job.”
[
17] Sec
9
of the EEA provides that for purposes of sections 6, 7 and 8
“
employee
”
includes an applicant for employment. I have just dealt with sec 6(1)
and (2) of the EEA. There is also sec 6(3) which deals
with the
harassment of an employee. Sec 7 deals with medical testing. Sec 8
deals with psychometric testing.
[
18] Sec
10
of the EEA deals with disputes that arise under Chapter II. The
heading is: “
Disputes
concerning this Chapter
.”
Sec 10(1) excludes from the word “
dispute
”
any dispute “
about
an unfair dismissal which must be referred to the appropriate body
for conciliation and arbitration or adjudication in terms
of Chapter
VIII of the
Labour Relations Act.
”
Sec
10(2) provides thus:
“
(2) Any party to a dispute concerning this
Chapter may refer the dispute in writing to the CCMA within six
months after the act
or omission that allegedly constitutes unfair
discrimination.”
A dispute that is referred to the
CCMA then becomes the subject of conciliation by the CCMA in terms of
sec 10(5).
In terms of
sec 10(6)
if the dispute remains unresolved
after conciliation, it may be referred to the Labour Court for
adjudication
. However,
if, for whatever reason, the parties wish to have the dispute
resolved through arbitration, they may refer the dispute
to
arbitration by mutual consent.
[
19]
Sec
11
deals with the burden of proof. It reads:
“
Whenever unfair
discrimination is alleged in terms of
this Act, the employer against whom the allegation is made must
establish that it is fair.”
It is clear that unfair
discrimination disputes falling under chapter II of the EEA can be
referred to the Labour Court for adjudication
and this can be done by
an individual. The phrase “
any
party to a dispute concerning this Chapter
”
in sec 10(2) obviously includes an individual as well as a group.
Affirmative
action – Chapter III
[
20] Chapter
III applies to designated employers only unless the contrary is
provided for in a particular case under the chapter
(sec 12). Sec 13
deals with duties of designated employers. It bears a heading to that
effect. Sec 13 provides as follows:
“
(1) Every designated employer must, in order
to achieve employment equity, implement affirmative action measures
for people from
designated groups in terms of this Act.
(2)
A
designated employer must –
(a) consult
with its employees as required by section16;
(b)
conduct
an analysis as required by section 19;
(c)
prepare
an employment equity plan as required by section 20; and
(d)
Report to the
Director–General on progress made in implementing
its employment equity plan, as required by section
21.”
Sec 14 allows an employer who is not
a designated employer and, therefore, does not bear the obligations
placed by Chapter III upon
designated employers to, of its own
volition, arrange with the Director-General to assume the same
responsibilities as are imposed
upon
designated
employers under Chapter III.
[
21] Sec
15
deals with affirmative action measures. Sec 15(1) reads as
follows:
“
(1)
Affirmative
action measures are measures designed to ensure that suitably
qualified people from designated groups have equal employment
opportunities and are equitably represented in all occupational
categories and levels in the workforce of a designated employer.”
Sec 15(2) gives a list of affirmative
action measures. It seems that the list might not be exhaustive
because the verb “
include
”
is used. Sec 15(2) reads as follows:
“
(2) Affirmative action measures implemented by
a designated employer must include –
measures to identify and
eliminate employment barriers, including unfair discrimination,
which adversely affect people from
designated groups;
measures designed
to
further diversify in the workplace based on equal dignity and
respect of all people;
making reasonable accommodation for people from
designated groups in order to ensure that they enjoy equal
opportunities and are
equitably represented in the workplace of a
designated employer;
subject to subs
ection
(3), measures to –
ensure the equitable representation of suitably
qualified people from designated groups in all occupational
categories and levels
in the workforce; and
retain and develop people from
designated groups and to implement appropriate training measures,
including measures in terms
of an Act of Parliament providing for
skills development.
(3) The measures referred to in
subsection (2) (d) include preferential treatment and numerical
goals, but exclude quotas.
(4) Subject to section 42, nothing
in this section requires a designated employer to take any decision
concerning an employment
policy or practice that would establish an
absolute barrier to the prospective or continued employment or
advancement of people
who
are
not from designated groups.”
[22
] Sec
16 deals with the consultation of employees by a designated employer.
Sec 16(1)-(3) reads as follows:
“
(1) A designated employer must take reasonable
steps to consult and attempt to reach agreement on the matters
referred to in section
17 –
with a representative trade union representing
members at the workplace and its employees or representatives
nominated by them;
or
if no representative trade union represents members
at the workplace, with its employees or representatives nominated by
them.
The employees or their nominated representatives
with whom an employer consults in terms of subsection (1)(a) and
(b), taken as
a whole, must reflect the interests of –
employees from across all
occupational categories and levels of the employer’s
workforce;
employees from designated
groups; and
employees who are not from designated groups.
This section does not affect the obligation of any
designated employer in terms of
section 86
of the
Labour Relations
Act to
consult and reach consensus with a workplace forum on any of
the matters referred to in
section 17
of this Act.”
[2
3] Sec
17
deals with matters about which a designated employer must consult
employees or their representative trade union. It reads:
“
A designated employer must consult the parties
referred to in section 16 concerning –
the conduct of the analysis referred to in section
19;
the preparation and implementation of the employment
equity plan referred to in section 20; and
a report referred to in section 21.”
[2
4] Sec
18
deals with the disclosure of information by a designated employer.
It obliges a designated employer, who is engaged in consultation
in
terms of Chapter III of the EEA, to disclose to the consulting
parties “
all
relevant information that will enable those parties to consult
effectively
”.
Sec 18(2) provides that, unless the EEA provides otherwise, the
provisions of sec 16 of the Labour Relations Act, 1995
(Act 66 of
1995) applies, with the changes required by the context, to the
disclosure of information. This would include the dispute
resolution
procedure contained in sec 16.
[2
5] Sec
19
deals with the analysis. Sec 19(1) and (2) read:
“
(1) A designated employer
must collect information
and conduct an analysis, as prescribed, of its employment policies,
practices, procedures and the working environment in order
to
identify employment barriers which adversely affect people from
designated groups.
An analysis conducted in terms of subsection (1)
must include a profile, as prescribed, of the designated employer’s
workforce
within each occupational category and level in order to
determine the degree of underrepresentation of people from
designated
groups in various occupational categories and levels in
that employer’s workforce.”
[2
6] Sec
20
deals with the employment equity plan. Sec 20(1) reads:
“
A designated employer must prepare and
implement an employment equity plan which will achieve reasonable
progress towards employment
equity in that employer’s
workforce.”
What
sec 20(1) does is to place an obligation on a designated employer to
prepare and implement an employment equity plan. Sec 20(2)
sets out
what should be contained in an employment equity plan. The contents
of an employment equity plan must include the following:
“
(a)
the
objectives to be achieved for each year of the plan.
the affirmative action measures to be implemented as
required by section 15(2);
where underrepresentation of
people from designated groups has been identified by the analysis,
the numerical goals to achieve
the equitable representation of
suitably qualified people from designated groups within each
occupational category and level
in the workforce, the timetable
within which this is to be achieved, and the strategies intended to
achieve those goals;
the timetable for each year of the plan for the
achievement of goals and objectives other than numerical goals.
…
..
The procedures that will be used to monitor and
evaluate the implementation of the plan and whether reasonable
progress is being
made towards implementing employment equity;
The internal procedures to
resolve any dispute about the interpretation or implementation of
the plan;
The persons in the workforce, including senior
managers, responsible for monitoring and implementing the plan;
…
.”
[
27] Sec
20(3)
sets out when it may be said that a person is suitably
qualified. It reads:
“
(3) For the purposes of this Act a person may
be suitably qualified for a job as a result of any one of or any
combination of that
person’s –
formal qualifications
prior learning
relevant experience
capacity to acquire, within a reasonable time, the
ability to do the job.”
[2
8] Sec
20(4)
reads:
“
(4) When determining whether a person is
suitably qualified for a job, an employer must –
review all the factors listed in subsection(3);
and
determine whether that person has
the ability to do the job in terms of any one of or any combination
of those factors.”
Sec 20(5) reads:
“
(5) In making a determination under subsection
(4), an employer may not unfairly discriminate against a person
solely on the grounds
of that person’s lack of relevant
experience.”
[2
9] Sec
21
deals with the submission of an employment equity plan report by a
designated employer. Sec 22 deals with the publication of the
employment equity plan report. Sec 24 reads:
“24. Designated employer must assign manager
–
Every designated employer must –
assign one or more senior
managers to take responsibility for monitoring and implementing an
employment equity plan;
p
rovide
the managers with the authority and means to perform their
functions; and
t
ake
reasonable steps to ensure that the managers perform their
functions.”
[
30] Section
25 bears the heading:
“Duty
to inform”.
Sec 25 reads:
“
(1) An employer must display at the workplace
where it can be read by employees a notice in the prescribed form,
informing them
about the provisions of this Act.
A designated employer must, in each of its
workplaces, place in prominent places that are accessible to all
employees –
the most recent report submitted by that employer
to the Director-General;
any compliance order,
arbitration award or order of the Labour Court concerning the
provisions of this Act in relation to that
employer; and
any other document concerning this Act as may be
prescribed.
An employer who has an employment equity plan must
make a copy of the plan available to its employees for copying and
consultation.”
[
31] In
terms of sec 27, when a designated employer reports in terms of sec
21(1) and (2), it must submit a statement, as prescribed,
to the
Employment Conditions Commission established by sec 59 of the Basic
Conditions of Employment Act, 1998 on the remuneration
and benefits
received in each occupational category and level of that employer’s
workforce. Sec 27(2) provides that, where
disproportionate income
differentials are reflected in the statement referred to in sec
27(1), a designated employer must take
measures to progressively
reduce such differentials subject to such guidance as may be given by
the Minister of Labour in accordance
with ss(4).
[3
2] Chapter
V deals with monitoring, enforcement and legal proceedings and bears
a heading to that effect. Sec 34 deals with monitoring
by employees
and trade union representatives. It reads:
“
Any employee
or trade union representative may bring an alleged contravention of
this Act to the attention of –
another employee;
an employer;
a trade union;
a workplace forum;
a labour inspector;
the Director-General; or
the commission.”
[3
3] Sec
35
gives a labour inspector authority to enter premises, question
people and inspect as provided for in sections 65 and 66 of the Basic
Conditions of Employment Act,
1998. Sec 36
deals with the role of a
labour inspector when he has reasonable grounds to believe that a
designated employer has failed to take
certain steps specified in
paragraphs (a) – (j) of sec 36 which must be read, for that
purpose, with sections 16,19, 20,
21, 22, 23, 24, 25 and 26 of the
EEA. Those steps are to:
“
(a) consult
with employees as required by section 16;
(b)
conduct
an analysis as required by section 19;
prepare an employment equity plan as required by
section 20;
implement its employment equity plan;
submit an annual report as required by section 21;
publish its report as required by section 22;
prepare a successive employment equity plan as
required by section 23;
assign responsibility to one or more senior managers
as required by section 24;
inform its employees as required by section 25; or
keep records as required by section 26.”
[
34] Section
36 is to the effect that, when a labour inspector has reasonable
grounds to believe that a designated employer has failed
to do any of
the things set out in (a) – (j) above, he “
must
”
request and obtain a written undertaking from the designated employer
to take those steps within a specified period. If
a designated
employer refuses to give the written undertaking requested, in terms
of sec 37 the labour inspector may issue a compliance
order to the
designated employer. If the designated employer fails to comply with
the labour inspector’s compliance order
and does not object to
the compliance order in terms of sec 39 of the EEA, in terms of sec
37(6) “
the
Director-General
may
apply to the Labour Court to make the compliance order an order of
the Labour Court
”.
If a designated employer objects to the compliance order in terms of
sec 39 of the EEA, it must make representations to
the
Director-General who has power to cancel, vary, or confirm the
compliance order. The Director-General may require the designated
employer to comply with the confirmed part of the compliance order
where part of it is confirmed. A designated employer who is
aggrieved
by a compliance order of the Director-General may appeal to the
Labour Court against such a compliance order.
[3
5] Sec
42
deals with the assessment by the Director-General of compliance by
a designated employer with provisions of the EEA. It sets out
a
number of matters which it says “
the
Director-General or any person or body applying this Act must …
take into account …”.
Sec 43 empowers the Director-General to conduct a review to determine
whether an employer is complying with the EEA. Sec 44 deals
with the
outcome of the Director-General’s review. Sec 44 reads:
“Subsequent
to a review in terms of section 43, the Director-General may –
approve a designated employer’s
employment equity plan; or
(b)
make a recommendation to an employer, in writing, stating –
(i)
steps
which the employer must take in connection with its employment equity
plan or the implementation of that plan, or in relation
to its
compliance with any other provision of this Act; and
(ii) the period within which those steps must be
taken; and
any other prescribed information.”
[3
6] Sec
45
provides that, if an employer fails to comply with a request made
by the Director-General in terms of section 43(2) or a recommendation
made by the Director-General in terms of section 44(b), the
Director-General may refer the employer’s non- compliance to
the Labour Court.
[3
7] Sec
46
deals with a possible “
conflict
of proceedings
.”
Sec 46(1) and (2) read:
“
(1) If a dispute has been
referred to the CCMA by a party in terms of chapter II and the issue
to which the dispute relates also
forms the subject of a referral to
the Labour Court by the Director-General in terms of section 45, the
CCMA proceedings must be
stayed until the Labour Court makes a
decision on the referral by the Director-General
;
If a dispute has been referred to
the CCMA by a
party in terms of Chapter II against an employer being reviewed by
the Director-General in terms of sec 43 there may not be
conciliation or adjudication in respect of the dispute until the
review has been completed and the employer has been informed
of the
outcome.”
[3
8] Sec
47
makes provision to the effect that different proceedings relating
to one employer’s non-compliance with the EEA may be
consolidated.
Sec 48 permits a commissioner in terms of the EEA to
make any appropriate arbitration award that gives effect to a
provision of
the EEA. Sec 50 bears the heading: “
Power
of Labour Court.
”
Sec 50(1)(f) provides that the Labour Court “
may
make any appropriate
order including an order:
(f) ordering compliance with any
provision of this Act; including a request made by the
Director-General in terms of section 43(2)
or a recommendation made
by the Director-General in terms in section 44(b);
”
[3
9] Sec
50(h)
provides that the Labour Court may make any appropriate order
including an order “
reviewin
g”
the performance or purported performance of any function provided for
in the EEA or any act or omission of any person or
body in terms of
the EEA on any grounds that are permissible in law.
Sec 50(2) provides:
“
(2)
If
the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order that
is just and equitable in the circumstances including –
payment of compensation by the
employer to that employee;
payment of damages by the
employer to that employee;
an order directing the employer
to take steps to prevent the same unfair discrimination or a similar
practice occurring in the
future in respect of other employees;
An order directing an employer
other than a designated employer to comply with Chapter III as if it
were a designated employer.
…”
[40
] Sec
52 deals with a dispute resolution procedure. Sec 52(1) reads:
“
(1) If there is a dispute
about the interpretation or application of this Part, any party to
the dispute may refer it in writing
to the CCMA.”
At the CCMA t
he
dispute is conciliated. If the dispute remains unresolved after
conciliation, it may be referred to the Labour Court for
adjudication.
Parties may, by mutual consent, refer to arbitration a
dispute that otherwise should be referred to adjudication.
[41
] Sec
53 deals with State contracts and the role of compliance with
chapters II and III of the EEA in the award of State contracts.
Sec
60 deals with the liability of employers for the acts of their
employees in cases where the employees commit acts which would
have
constituted a breach of provisions of the EEA if they had been
committed by a designated employer.
[4
2] I
have stated above that chapter III of the Act deals with affirmative
action. I have above also alluded to the fact that chapter
II of the
EEA – which deals with the prohibition of unfair discrimination
- contains a dispute resolution procedure. That
dispute resolution
procedure is available to “
any
party to a dispute concerning
”
that chapter. (sec 10(2)). That dispute resolution procedure
culminates in the adjudication of a dispute by the Labour Court
if
conciliation fails to achieve a resolution. What is very striking
about Chapter III is the fact that no dispute resolution procedure
is
provided for in that chapter. It is difficult to think that the
drafters of the Act remembered to include a dispute resolution
procedure in Chapter II for disputes concerning that chapter but
suddenly forgot to include a dispute resolution procedure in Chapter
III, when they came to the latter chapter. The more plausible
explanation for their omission to include such a procedure in chapter
III is that they did not forget to include it but deliberately
omitted to do so for some reason.
[
43] Chapter
IV deals with the Commission For Employment Equity. No dispute
resolution procedure is provided for therein. Chapter
V deals with
monitoring, enforcement and legal proceedings. Such obligations as
are placed upon a designated employer by some or
other provisions of
Chapter III can all be enforced by the use of the enforcement
procedure provided for in Chapter V. It is not
necessary to go into
details in this regard but I am satisfied that all such obligations
as are placed upon a designated employer
under Chapter III can be
enforced by using the enforcement procedure provided for in Chapter
V. It seems to me that this would
explain why the drafters did not
include a dispute resolution procedure in Chapter III notwithstanding
the fact that they included
one in Chapter II. They did not do so
because the idea was that the enforcement procedure provided for in
Chapter V should be used
instead or at least should be exhausted
first before there could be a resort to the institution of court
proceedings.
[4
4] A
reading of sec 36(1) which is in Chapter V of the EEA reveals that a
designated employer’s failure to comply with sections
of the
EEA in respect of which a labour inspector may seek a written
undertaking to comply are all sections which fall under Chapter
III,
namely, sections 16, 19, 21, 22, 23, 24, 25 and
26. Sec 37(2)(b)
of
the EEA also gives an indication that Part A of Chapter V is about
the enforcement of the provisions of Chapter III. Sec 37
(2)(b)
reads:
“
(2) A compliance order
issued in terms of subsection (1) must set out -
……
.
t
hose
provisions of chapter III of this Act which the employer has not
complied with and details of the conduct constituting
non-compliance.”
Sec 38 gives another indication tha
t
the enforcement procedure in Chapter V is largely, if not
exclusively, about Chapter III of the EEA. Sec 38 reads:
“
A labour inspector may not
issue a compliance order in respect of a failure
to comply with a provision of Chapter III of this Act if ….”
No
Chapter other than Chapter III is referred to. Part B of Chapter V
deals with legal proceedings. Sec 46(1) provides that “
(i)f
a dispute has been referred to the CCMA by a party in terms of
Chapter II and the issue to which the dispute relates also forms
the
subject of a referral to the Labour Court by the Director –General
in terms of sec 45, the CCMA proceedings must be stayed
until the
Labour Court makes a decision on the referral by the
Director-General.”
[4
5] Section
46(1) makes it clear that it is in respect of Chapter II that a
referral of a dispute by a party is contemplated and
the referral to
the Labour Court under sec 45 would be by the Director-General. Sec
46(2) contains a provision almost similar to
that of sec 46(1) save
that it relates to a case where the employer is being “
reviewed
by the Director-General in terms of section 43
”
of the EEA.
[4
6] It
also needs to be noted that the drafters of the EEA included a
dispute resolution procedure in Part C of Chapter V. This is
in sec
52. Once again how could the drafters have remembered to include a
dispute resolution procedure in Chapter II, forgotten
to include one
in Chapter III but once again suddenly remembered to include one in
Chapter V? That can simply not be! The fact
of the matter is that
they intended that any interested party who is aggrieved by a
designated employer’s failure to comply
with any of its
obligations under chapter III would take steps to have the
enforcement procedure provided for in chapter V invoked
and they did
not intend that such an interested party could simply ignore that
procedure and institute court proceedings. That
is the policy choice
that was made by the legislature. It may be good or it may be bad but
the legislature was entitled to make
that policy choice.
[4
7] On
behalf of the appellant much reliance was placed on the provision of
sec 50(1)(f) in support of the contention that the appellant
had a
cause of action based upon the provisions of affirmative action in
the Act and had a right to institute court proceedings
to compel the
first respondent to comply with its obligations under Chapter III of
the EEA. Sec 50(1)(f) reads as follows:
“
Powers of the Labour Court
(1)
-
Except where this Act provides otherwise, the Labour Court may make
any appropriate order including-
…
(f)
ordering
compliance with any provision of this Act including a request made by
the Director-General in terms of section 43(2) or
a recommendation
made by the Director-General in terms of section 44(b);”
The appellant’s argument was that, if she thought
that the first respondent was failing to comply with any of its
obligations
under chapter III, she had a right to institute
proceedings in the Labour Court for an order such as is provided for
in sec 50(1)(f)
of the Act.
[4
8] I
am unable to uphold the appellant’s contention. In my view, if
the drafters of the Act had intended that anyone who believed
that a
designated employer was failing to comply with its obligations under
Chapter III could approach the Labour Court, prior
to the exhaustion
of the enforcement procedure provided for in Chapter V of the EEA,
they would have provided a dispute resolution
procedure in Part A of
Chapter III in the same way that they provided such a procedure in
Chapter II. The drafters of the EEA decided
that, for non-compliance
with a designated employer’s obligations under Chapter III, the
enforcement procedure set out in
Chapter V would have to be exhausted
first. In this regard it needs to be noted that such enforcement
procedure leads to an adjudication
process by the Labour Court if
this becomes necessary.
[49
] Generally
speaking, the provisions of sec 50(1) of the EEA deal with powers of
the Labour Court in those matters in which it has
jurisdiction and
there is a cause of action. Sec 50(1) does not, generally speaking,
purport to deal with the jurisdiction of the
Labour Court and with
causes of action. That is, for example, in a case such as where the
Director-General refers a matter of non-compliance
to the Labour
Court in terms of the enforcement procedure set out in Chapter V. The
only possible exception to this general thread
in sec 50(1) is sec
50(1)(h) but even that may arguably be said to relate to powers and
not causes of action and jurisdiction.
There is in this case no
reliance upon sec 50(1)(g) of the EEA. In the circumstances I
conclude that sec 50(1)(f) is of no assistance
to the appellant. In
the light of the above I conclude that it is not competent to
institute proceedings in the Labour Court in
respect of an alleged
breach of any obligation under chapter III of the EEA, prior to the
exhaustion of the enforcement procedure
provided for in Chapter V of
the EEA.
Exception based on Ground B
[50
] The
next question for consideration is whether a designated employer’s
breach of its obligation either under its own selection
or
affirmative action policy or under the affirmative action provisions
of Chapter III of the EEA in filling a vacant post, for
example in
failing to prefer a black woman candidate to a white male candidate
constitutes unfair discrimination. In this case
part of the
appellant’s claim is that the first respondent had an
obligation in terms of its recruitment and selection policy
and in
terms of Chapter III of the EEA to prefer her to the second
respondent for appointment because she was a woman and was black.
The
first respondent’s failure, contends the appellant, to prefer
her for appointment constituted unfair discrimination.
[51] When the appellant complains
that the first respondent failed to give her preference in terms of
its selection policy, the
appellant is in effect saying that the
first respondent failed or refused to put her ahead of white male
candidates in its consideration
of who should be appointed to the
position. The advantage and benefits which whites gave themselves
under apartheid and the disadvantage
and hardships to which blacks
were subjected under that system can at some level be compared to a
race which had black and white
participants. Imagine that in such a
race the black athletes would be shown one starting line and they
would all line up at that
starting line. White athletes would be
shown a different starting line – one that is just for them.
Their starting line would
be a number of metres ahead of the starting
line set aside for blacks. The athletes – both black and white-
would be running
different distances to the same finishing line. The
whites would run a distance that would be some metres shorter than
the distance
that the black athletes would run because the white
athletes’ starting line would have been some metres closer to
the finishing
line than the starting line for blacks. From this
example it is obvious that those in charge of the race – and
therefore
those in charge of the country under apartheid did not want
black athletes to win and wanted whites to win. Obviously, with the
white athletes enjoying such an advantage, most of them would reach
the finishing line ahead of either all or most of the black
athletes.
Of course, there would be cases where, despite having started the
race some distance behind the white athletes, some
black athletes
would not only completely close the gap between them and the fastest
running of the white athletes but they would
outrun all the white
athletes.
[
52] The
purpose of affirmative action is inter alia to achieve employment
equity in the workplace. I need to go back to the example
given above
in respect of a running race and use it to explain what the appellant
in effect means when she complains that the first
respondent’s
conduct in failing to give her preference constitutes unfair
discrimination. What the appellant means in effect
is, that, like in
the running race example given above, the first respondent should
have placed her some distance ahead of the
other candidate’s
starting line. What happens when no preference is given? In such a
case the athletes may well all be placed
on the same starting line so
that they are given an equal distance to run. If that is done, the
athlete who believes that he should
have been given a separate and
special starting line ahead of others is not being unfairly
discriminated against by being treated
in the same way as the others.
In fact such athlete is not even being discriminated against in the
first place, not to speak of
being discriminated against unfairly.
The fact that the employer’s failure to give an employee
preference in the filling
of a position does not constitute unfair
discrimination does not mean that such employee would have no cause
of action at all.
For example, if such employee’s employer was
obliged to give him or her preference in terms of a collective
agreement, the
failure to give him or her preference would constitute
a breach of such agreement even though it would not constitute unfair
discrimination.
Accordingly, in so far as the appellant’s
statement of claim includes a claim to the effect that the first
respondent failed
to give her preference in the filling of the post
in question as required either by the statutory provisions relating
to affirmative
action or as required by its recruitment and selection
policy and that such failure to give her preference constituted
unfair discrimination
based on race or gender, the first respondent’s
exception was correctly upheld by the Labour Court.
[53
] I
am aware that the judgement of the Learned Acting Judge in the Court
below was contrary to the earlier judgment given by the
Labour Court
in
Harmse v City of
Cape Town
[2003] 6 BLLR 557
(LC)
with which he said he disagreed. To the extent that the Harmse
judgment is in conflict with this judgment, it was, of course,
wrongly decided. Subsequent to the judgment of the Labour Court in
this matter, the judgments in
PSA
on behalf of Karriem v SAPS & Another (2007) 28 ILJ 158 (LC);
Cupido v Glaxosmithkline SA (Pty) Ltd (2005) 26 ILJ
868 (LC)
and
Thekiso v IBM
South Africa (Pty) Ltd
[2007] 3 BLLR 253
(LC)
were
given and they all followed Tip AJ’s judgment now on appeal.
[54
] This
judgement does not affect the appellant’s claim that the first
respondent unfairly discriminated against her on grounds
of race or
colour or gender in that the only reason why she was not appointed to
the position in question is that she was black
or was a woman or
both. That is, where that claim is not based on an alleged breach of
an obligation relating to an affirmative
action on the first
respondent’s part or is not based on the first respondent
failing to give the appellant preference but
is simply based on the
allegation that the first respondent’s reason for not
appointing the appellant was because of the
appellant’s race,
colour or gender or any combination of those factors.
[55
] In
its judgment the Labour Court decided that what can loosely be
referred to as “
the
right to affirmative action
”
is not an individual right. I have examined the exceptions that had
been taken by the first respondent to the appellant’s
statement
of claim which the Labour Court was called upon to decide in terms of
the pleadings. That issue fell outside the exceptions
that had been
taken. In this judgment I have confined myself to those two grounds
upon which the exception was taken which this
Court was called upon
to decide. Accordingly, that point has not been dealt with in this
judgment as it falls outside the issues
that in terms of the
pleadings the Court
a
quo
was called upon
to decide. It will also be seen from the judgment of the Labour Court
that the Labour Court seems to have decided
in effect that court
proceedings based on an employer’s failure to comply with its
affirmative action obligations are not
competent. In this judgment I
have decided that the institution of court proceedings in regard to
an alleged breach of a designated
employer’s obligation under
Chapter III of the EEA
prior
to the exhaustion of the
enforcement procedure provided for in Chapter V of the EEA is not
competent. I have not decided the question whether, if and when
the
appellant has exhausted the enforcement procedure provided for in
Chapter V, she can at that stage institute court proceedings.
We have
refrained from deciding that point simply because it fell outside the
terms of the exception taken by the appellant.
[56
] In
the light of all the above it seems to me that the appellant’s
appeal falls to be dismissed. With regard to costs I am
of the view
that the requirements of the law and fairness dictate that in a case
such as this one there should be no order as to
costs.
[57
] In
the result the appeal is dismissed with no order as to costs.
Zondo JP
I agree.
R Pillay AJA
I agree.
Kruger AJA
Appearances
For the Appellant : Mr A Schippers SC
Instructed by : ABE Glam & Associates
For the Respondent : Mr L.A. Rose-Innes SC
(with Mr C Kahanovitz
)
Instructed by : Herold Gie Attorneys
Date of judgment : 21 August 2008