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[2007] ZALCD 1
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McPherson v University of KwaZulu-Natal and Another (D45/05) [2007] ZALCD 1 (31 August 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
D45/05
In
the matter between:
MICHAEL
McPHERSON APPLICANT
And
UNIVERSITY
OF
KWAZULU-NATAL
1
ST
RESPONDENT
PROFESSOR S. R.
PILLAY 2
ND
RESPONDENT
JUDGMENT
Cele
AJ
Introduction
:
[1]
This is a claim about an unfair discrimination allegedly meted out to
the applicant when the first respondent failed to consider
his
application for the position of Head of School of Physics. The
applicant seeks an order wherein the respondent is directed
to
re-advertise the said position with the exclusion of the requirement
that any permanent academic member of staff, is eligible
for
appointment as the Head of School. In the first alternative prayer,
he seeks to have the appointment of the second respondent,
as Head of
School, set aside. In that event, he seeks to have his application
for the position, accepted and considered together
with all other
applications for the position of Head of School, for a fresh
appointment. In the second alternative, he seeks to
be awarded
compensation in an amount to be determined by this court.
Background
facts:
[2]
The University of Durban Westville (“UDW”) and the
University of Natal (“UN”), with one campus in Durban
and
another, in Pietermaritzburg were autonomous academic institutions
with their own policies governing the engagement of employment
services for their staff members.
[3]
In 2001 the applicant was appointed as a Senior Lecturer at the
University of the North on a three year contract basis. However,
at
the end of 2002, his employment contract with the University of the
North was prematurely terminated for the reason that the
University
of the North had merged with the University of the Free State,
resulting in the post-graduate studies, in Physics that
he was
teaching, being discontinued. The applicant was then appointed to the
position of an Associate Professor of Physics at “UDW”,
in terms of a fixed term contract, with effect from 1 January 2003 up
to 31 December 2007. He began his employment services with
the “UDW”
by serving a 12 months’ probation period. As an Associate
Professor, he had not yet attained the full
professorship. He was
thereafter appointed as a Director of the School of Physical Sciences
at “UDW”. Accordingly therefore,
the remainder of the
period of his five year term contract would be spent in the capacity
as Director of School of Physical Science.
[4]
After the Applicant joined the “UDW” in 2003, the
process of the merger between the “UN” and the “UDW”
commenced and discussions progressed between their various
departments. The applicant joined the ongoing consultation process,
as Director of the School of Physical Sciences and represented the
“UDW”. The process culminated in the formation of
the
first respondent. The consultation process also produced,
inter
alia
, one merged school of physics and
one merged school of chemistry for the merged university. There would
be one Head of the School
of Physics, for the three campuses. Each
campus would have a decentralised school of physics, headed by a
Deputy Head, one in Durban,
Pietermaritzburg and then Durban
Westville. The merger took effect from 1 January 2004.
[5]
Basically, all staff members of the three campuses were taken into
the newly formed university, including the staff who were
on contract
similar to that of the applicant.
[6]
Soon thereafter, Council for the first respondent appointed a
sub-committee whose function it was to advise Council on the roles
and responsibilities of various senior positions of the merged
structure. The sub-committee composed a document entitled:
“
Faculty
Management: Role and Responsibilities, Recruitment and Selection of
Faculty Management and leadership”
Various
reports, containing recommendations were submitted to council by the
sub-committee.
[7]
Subsequent to the merger, the first respondent internally advertised
some posts which included that of the Head of School of
Physics. The
advertisement for the Head of School of Physics had an eligibility
requirement that any permanent academic member
of staff of the first
respondent, at the level of senior lecturer or above, was eligible
for appointment. The consequence of the
eligibility requirement was
that it excluded any staff member who was not on a permanent
appointment. The applicant who was on
a fixed term contract was
naturally excluded as an applicant for the post. The bar
notwithstanding, the applicant submitted his
application for the post
on 22 November 2004. He received a written response from the second
respondent, dated 27 November 2004,
with the acknowledgement of
receipt of his application which proceeded to inform him that he
regrettably did not qualify to apply
for the post and that his
application was accordingly rejected. The letter, in the form of an
e-mail, referred to the fact that
the advertisement indicated that
only the existing permanent academic members of staff were eligible
to apply for the post.
[8]
The issue of eligibility for appointment to posts created by the
merger process was a subject of some consultation and debate
during
the process leading up to the merger. The extent to which this issue
was raised for discussion and council’s involvement
therein are
enshrined in the bone of contention between the parties.
[9]
The post of Head of School is a contract post for three years. Had
the applicant been appointed to it, the three years of the
contract
would have coincided with the remaining three years from his original
five year contract. The first respondent appointed
the second
respondent as Head of School of Physics. The effect thereof was that,
the applicant who occupied the position of Head
of School of Physical
Science at “UDW”, had to vacate the post, in favour of
the second respondent who took up the
post for the merged entity.
[10]
The applicant regarded the first respondent’s policy of
exclusion as unfairly discriminatory and he referred a dispute
which
had arisen between him and the first respondent to the CCMA for
conciliation. When a conciliation hearing was still pending,
he
approached this court by way of an urgent application seeking to
interdict the first respondent from proceeding with interviews
of
candidates or the making of the appointment to the post, pending the
finalisation of the dispute he had referred to the CCMA.
He was not
successful in obtaining an interdict. When conciliation failed to
resolve the dispute, the applicant referred it to
this court by means
of statement of claim filed with the registrar on 18 March 2005.
[11]
On 21 June 2005 the applicant served a written notice of resignation
to the first respondent, through the second respondent.
After the
exchange of some correspondence between the parties, the first
respondent accepted the applicant’s resignation,
which took
effect from 31 July 2005. On 1 August 2005, the applicant took the
post of Dean of the Faculty of Agriculture, Science
and Technology at
North-West University, Mafikeng campus. The position of Deanship
taken by the applicant had more lucrative benefits
totalling R473,430
than those he had been receiving either from the first respondent or
from “UDW”, which stood at
R330 000.
The
Trial Issues:
[12]
The applicant satisfied me that he personally took up the issue of
the prohibition of the temporary staff from being eligible
to apply
for vacant posts created as a result of the merger. However, his
attempt to show the extent to which there was opposition
to the
proposed limitation of eligibility and the widespread protest and
condemnation over the eligibility requirement clearly
went in vain.
He failed to meet up to the challenge when he was invited to produce
any records or minutes which could support his
claim. The total
probabilities of the evidential material before me point me to only
one direction, namely that the applicant is
the only person who at
the consultation process, took up the issue.
Did
the limitation of eligibility for the post of Head of School
constitute discrimination? If so, was it unfair discrimination?
[13] It is beyond dispute
that the eligibility of candidates for the post of Head of School of
Physics was limited in favour of
the permanent academic staff
members. Any of the staff members of the respondent who were on
temporary appointments were expressly
excluded. The evidence of the
respondent in justification of the differentiation came through
Professor Michael Chapman, Professor
Staniland, Professor S Pillay
and Mr Paul Finden in the main, as being:
Ø
A distinction had to be drawn between a
qualification of the Head of School from that of a Dean. A Head of
School was firstly an
academic leader and then also, a Manager while
a Dean moved closer to managerial functions.
Ø
A Head of School was close to the
discipline in his or her faculty, close to the teaching and research
base of the discipline or
disciplines in the School and consequently
commanded respect of people close to him in the working environment.
He or she should
be part of the ranks of that discipline.
Ø
The Head of School has certain managerial
functions but these are limited to the practical planning of the
teaching program, the
design of the curriculum, the delivery of the
discipline, supervision of post-graduate students, staff workloads
and student details
in the everyday working environment. As a result
he or she should enjoy the status of permanence in the institution.
He or she
would be in charge of permanent staff who would have
satisfied a probation period.
Ø
The Head of School has to bring about
stability and continuity. At the end of the term of appointment, the
Head may be reappointed
and therefore has to be available for that
eventuality. If he or she is not reappointed he or she returns to his
or her previous
position, but may be consulted on continuous basis.
Ø
The term of office for a Head of School
runs for three years.
Ø
On the other hand a Dean is appointed for
five years. It would only be in exceptional circumstances that an
incumbent is reappointed
as a Dean.
Ø
The selection of a Head of School is done
through an internal advertisement, while that of a Dean may also be
done by external advertisement.
Ø
As opposed to a Head of School, a Dean has
limited contact with students and may not even teach.
Ø
Permanent staff were subjected to rigorous
assessment or interview process prior to their appointment unlike the
medium or short
term contract employees. There was then the
possibility of an appointee to the Head of School being unsuitable or
being a person
unlikely to enjoy the respect of his peers and
subordinate staff if the requirement of permanence is not retained.
Ø
There was always the possibility of adverse
budgetary consequences where a contract of employment was due to
expire prior to the
three year term for a contract employee in the
position of a Head of School. It might be necessary to provide
additional salary
for the remaining period as a Head of School.
Ø
As concessions: There were a number of
Heads of Schools appointed in 2005 who had since resigned their
positions. That in 2003 Professor
Saths Cooper of “UDW”
converted 300 temporary positions to permanent positions, was not
denied. That Professor Makgoba
announced a process whereby 250
temporary positions in 2005 would be converted to permanent positions
was not disputed. It was
not in dispute that some temporary staff
were appointed as Acting Heads of School of Medical Science,
Education and Dentistry.
Where there were no suitable permanent
employees within the institution, head hunting could be done
externally.
Ø
The post of Head of School was not a
promotional post. It did not help academic advancement as much as it
would administratively.
[14]
According to the applicant, there was no justification for the
limitation of eligibility for the Head of School of Physics
because:-
·
The managerial functions of a Head of
School was one that could be passed on prior to the contract ending.
That would be through
a handing over process as was done with the
post of Dean.
·
While academic function required continuity
as was dealing with students and their progression, academics were
however often appointed
on contract basis (as was the case with the
applicant).
·
The period of tenure for the posts of Head
of School and that of the Deputy Head of School was three years for
each. All were vacating
posts at the same time, unless reappointed.
·
The Head of School was entitled to three
months’ sabbatical leave in addition to sabbatical leave
already accrued, immediately
after his or her contract of Head of
School has expired. That period may be more than a year.
·
The physical presence of a former Head was
not necessary to offer assistance. The applicant was an example.
After he left the first
respondent, he graduated his PhD students via
e-mail.
Submissions
by parties:
[15]
Mr Chadwick for the respondents referred to sections 1, 2, 5, 6 and
11 of the Employment Equity Act number 55 of 1998, (“the
EEA”)
and to various cases in which the mentioned sections found
applicability. It was his submission that the following
important
principles emerged from the cited authorities with reference to the
present case :-
Ø
An important consideration was whether the
differentiation between employees was :-
-
whether it was based on one of the
prohibited grounds mentioned in section 6 of the EEA or
-
whether it was discrimination which
undermined the dignity and self respect of the “victim”.
Ø
Whether the differentiation or
discrimination was unfair.
Ø
Whether the differentiation or
discrimination was arbitrary or whether it might be justified
on some rational basis, for instance
whether there might be some not
insignificant commercial
rationale
for
it.
[16] His submission was
that the alleged discrimination :-
·
did not fall within one of the prohibited
grounds mentioned in section 6 of the EEA;
·
was not in any sense designed, or likely to
impair dignity and self respect;
·
was not arbitrary. There was a commercial
rationale
and need for the discrimination.
[17]
He argued that when framing a policy of the nature in question, the
policy must needs cater for the general situation rather
than the
circumstance of particular individuals. Accordingly, it was no answer
for the applicant to contend that because his contract
would in any
event expire after the term of Head of School and/or because he might
personally have been subjected to rigorous examination,
when applying
for his post, that was the reason to condemn the policy as being
discriminatory and unfair.
[18]
He averred that the provisions of the policy were to be measured
against the operational requirements of the first respondent,
in the
general situation; it was not to be measured against its effect on
individual cases. This, he said, was not a case in which
the policy
was targeted at the applicant personally.
[19]
He said that there was no justification for the claim based on badly
wounded feelings as a result of being ruled ineligible
as the
applicant had elected to accept other employment where he enjoyed
greater status and benefits than of a Head of School of
the first
respondent.
[20]
He submitted that the appointment of a Head of School constituted a
deployment rather than a promotion. As a consequence the
exclusion
from eligibility would not constitute an unfair labour practice or
would impose a particularly difficult burden on the
first respondent.
He said that the first respondent’s decision to exclude the
applicant was neither irrational nor prompted
by an improper motive.
[21]
Mr Seery who appeared for the applicant submitted that an
Ø
appointment for a Head of School was to be
made in terms of the University’s Employment Equity Policy. The
policy :-
·
did not differentiate between contract and
permanent employees but applied to both;
·
defined “appointable” as a
person who not only met the minimum requirements of the job, but who
was likely to be successful
in the job;
·
endorsed the principle of equal opportunity
for all;
·
prescribed that appointments were to be
based on individual merit;
·
specified the content of the
advertisements for the posts being advertised.
·
appointments were based on two levels of
competency, ie minimum requirements being satisfied and the potential
to be successful
in the job.
Ø
There was nothing in the policy that
specifically stated that contract employees could be excluded from
applying for posts.
Ø
The exclusion of contract employees from
applying for certain posts could be “catered for” under
the requirement of
“operational necessity”, which in the
present case was not conceded to be applicable.
Ø
The first respondent made a generalised
assumption that permanent employees were more likely to remain as
functionaries within their
respective departments after their tenure
as Heads of School. A further assumption that followed was that
contract staff would,
by choice, not remain within their departments.
The first respondent produced no statistics justifying its
assumptions. The evidence
of the second respondent was
that 60% of the Heads appointed in 2005 have already resigned their
positions.
Ø
For a Head of School to be close to the
discipline, to command respect, to be part of the ranks of the
discipline, to supervise
post-graduate students and staff workload,
the incumbent of the post does not need to be a permanent member
of staff.
Ø
The screening process when appointing the
Head of School would be able to exclude those contract members of
staff that were not
subjected to a rigorous screening process when
they were employed, if they were not suitable for that position.
Ø
The first respondent had not adopted any
policy preventing the conversion of a temporary appointment to one of
a permanent nature.
The first respondent had a Credentials Committee
which was vested with powers to process and grant such conversion. In
2003 Professor
Saths Cooper of “UDW” converted 300
temporary positions to permanent positions. In 2005 Professor
Makgoba, the Principal
of the first respondent, announced a process
whereby 250 temporary positions would be converted to permanent
positions.
Ø
When it suited the first respondent, it
appointed contract members of staff to positions of Acting Heads of
School:
-in the School of
Dentistry;
-in the School of
Education and
-in the School of Medical
Science
Ø
The policy of the first respondent was such
that if there was no suitable (permanent) employee within the
institution (for appointment
as Head), the first respondent would
look externally. It was manifestly unfair to look outside of the
staff compliment and not
consider appointing contract members of
staff as Heads merely because of their employment status within the
institution.
Ø
The post of Head of School was a
promotional post (from Associate Professor) carrying with it extra
responsibility, authority and
benefits. The applicant was prevented
from following his chosen progression path merely because he was a
contract employee.
Ø
It must be accepted that contract employees
who met the minimum requirements to apply for the post (bar the
status of permanency)
have been treated less favourably than those
with permanent status. The less favourable treatment was
discriminatory and unfair.
Analysis
[22]
The recruitment and selection process of the
Head of School for the first respondent is governed by
the
University’s Employment Equity policy. When the first
respondent set out the role of Head of School, it provided a preamble
which states,
inter alia
that:
“
The
Head of School is expected to provide leadership in scholarship and
research within the school whilst, at the same time, ensuring
the
effective administration of the School.
Heads
of School, therefore, are academic administrators who are appointed
on the basis of administrative ability, high academic
standing and
considerable academic experience.
The
Head of School has ultimate responsibility for the overall efficient
and effective functioning of the School.
The
Head of School reports to the Dean of the Faculty. He or she is
accountable to the Faculty Board, College Academic Affairs Board,
and
the Senate for proper management of the School in terms of the
policies, vision, mission, goals and core values of the University.
The
Head of School will be expected to undergo necessary training and
induction in areas such as financial management, human resources
and
dispute resolution.”
[23]
The first respondent described the eligibility requirement for Heads
of School as :
“
Any
permanent academic at the level of Senior Lecturer or above is
eligible for appointment as Head of School.”
The
descriptive words : “Any permanent academic” are the
basis for the claim before me, which is premised on unfair
discrimination or unfair labour practice.
[24]
Section 9 of the Constitution of the Republic of South Africa, 1996
(“the Constitution”) prohibits
both the State
and any person from discriminating anyone on the basis of any one or
more grounds as listed in subsection (3). Section
10 of the
Constitution accords everyone inherent dignity and the right to have
their dignity respected and protected. While the
applicant had not
sought to place reliance on any ground listed in section 9 of the
Constitution, in my view, it remains important
to keep in mind the
constitutional imperative against discrimination.
[25]
Discrimination against an employee, directly or indirectly based on
any arbitrary ground is prohibited by section 187 (1) (f)
of the Act,
which section lists some of the grounds. The EEA is more detailed in
the prohibition of discrimination in the workplace,
Section 2 of the
EEA reads:-
“
2.
Purpose of this Act:
The
purpose of this Act is to achieve equity in the workplace by –
(a)
promoting equal opportunity and fair
treatment in employment through the elimination of unfair
discrimination; and
(b)
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.”
[26]
Section 3 of the EEA deals with the interpretation of the EEA and
reads,
inter alia
“
This
Act must be interpreted –
a)
in compliance with the Constitution;
b)
so as to give effect to its purpose;
c)
taking into account any relevant code of
good practice issued in terms of this Act or any other employment
law; and
d)
in compliance with the international law
obligations of the Republic, in particular those contained in the
International Labour
Organisation Convention (111) concerning
Discrimination in Respect of Employment and Occupation.”
[27]
Articles 1 and 2 of the International Labour Organisation Convention
(No. 111) concerning Discrimination in Respect of Employment
and
Occupation read:
“
Article
1
:
1. For the purpose of
this Convention the term “discrimination” includes:
(a)
Any distinction, exclusion or preference
made on the basis of race, colour, sex, religion, political opinion,
national extraction
or social origin, which has the effect of
nullifying or impairing equality of opportunity or treatment in
employment or occupation;
(b)
Such other distinction, exclusion or
preference which has the effect of nullifying or impairing equality
of opportunity or treatment
in employment or occupation as may be
determined by the Member concerned after consultation with
representative employers’
and workers’ organisations,
where such exist, and with other appropriate bodies.
2. Any distinction,
exclusion or preference in respect of a particular job based on the
inherent requirements thereof shall not
be deemed to be
discrimination.
3. For
the purpose of this Convention the terms “employment” and
“occupation” include access to vocational
training,
access to employment and to particular occupations, and terms and
conditions of employment.
Article
2
:
Each
Member for which this Convention is in force undertakes to declare
and pursue a national policy designed to promote, by methods
appropriate to national conditions and practice, equality of
opportunity and treatment in respect of employment and occupation,
with a view to eliminating any discrimination in respect thereof.”
[28] Section 6 (1) and
(2) of the EEA prohibits unfair discrimination and reads:
“
6.
Prohibition of Unfair Discrimination:
(1)
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.
(2)
It is not unfair discrimination to-
(a)
take affirmative action measures consistent
with the purpose of this Act; or
(b)
distinguish, exclude or prefer any person
on the basis of an inherent requirement of a job.”
[29]
The first respondent is the employer against whom there is an
allegation of unfair discrimination and therefore has to establish
that it acted fairly in the circumstances. The case of the first
respondent is that the provisions of the policy in question ought
to
be measured against the operational requirements of the University in
the general situation and not against its effect on individual
cases.
Seen in that perspective therefore, the distinction or exclusion of
staff on temporary posts did not amount to discrimination.
However,
should it be found to be discriminatory, it is not unfair
discrimination. The evidence of the first respondent reminded
me of
what Willis JA had to say in the case of
Woolworths (Pty) Ltd v
Whitehead
(2000) (6) BLLR 640
(LAC)
at 665-6. He commented:
“
A
decision made in regard to a single individual can hardly be
described as a ‘policy’ or ‘practice’. The
decision of the employer in this case is, furthermore, not indicative
of any policy or practice which it has adopted towards pregnant
women. As I have already indicated above, there is nothing remotely
to suggest that this particular employer has adopted an attitude
akin
to: “We do not want women who are or may fall pregnant to work
for us”.”
The
first respondent’s witnesses testified in the present case that
a policy was adopted, the effect of which was that the
first
respondent was saying “We do not want temporary staff to work
for us as Head of School”.
[30]
It was the evidence of the applicant (which was not disputed) that
UDW had a number of staff who were appointed on temporary
basis. The
rationale underlying the approach was the uncertainty of the status
of “UDW” due to a transformation which
it was known was
pending. There was also evidence that the “UN” itself had
some temporary staff in its employ. Therefore,
when the first
respondent came into existence, it would have taken into its employ
quite a number of staff who had been employed
on temporary basis,
inter alia
,
because of the uncertain future of the institutions whence they came.
These staff members could very well be South Africans who
but for the
pending change, could have been taken on permanent basis. There may
very well be other underlying reasons why temporary
staff were taken
on at the time. There is therefore overwhelming evidence before me
that the first respondent has in its employ
a sizeable number of its
staff who are on temporary employment. The position of the applicant
was therefore not an isolated case.
The first respondent’s
policy is that none from the group of temporary staff may be
appointed as Heads of a School. That
itself indicates that the
members of staff on temporary employment belong to a vulnerable
group.
[31]
There is undisputed evidence that in three schools, the first
respondent appointed temporary senior staff as “Acting
Heads”
for a period that would not be longer than 6 months for each. The
applicant, while on a temporary post, was appointed
by “UDW”
as a Head of School. There are therefore identifiable staff members
of the first respondent who are adversely
affected by the eligibility
requirement of a permanent appointment of a Head of School. The
eligibility requirement is therefore
discriminatory to the temporary
appointed staff members of the first respondent.
[32]
The first respondent places reliance, for the discriminatory
eligibility requirement, to sections 6(2)(b) of the EEA to show
that
it acted fairly. Commenting on the justification of unfair
discrimination, Murphy AJ (as he then was) in the case of
Independent
Municipal and Allied Workers Union and Another v City of Cape Town
(2005) 26 ILJ 1404 (LC)
had this to say:
“
Unfair
discrimination can be justifiable in our law. The justificatory stage
is where the respondent seeks to justify otherwise
unfair
discrimination. In human right or constitutional law the notion of
‘unfair’ discrimination focuses on the holder
of the
right, whereas justification focuses on the purposes, actions and
reasons of the government, and not the rights of the holder.
Factors
that would or could justify interference with the right to equality
are to be distinguished from those relevant to the
enquiry about
fairness. The one is concerned with justification, possibly
notwithstanding unfairness; the other is concerned with
fairness and
with nothing else –
President of
the Republic of South Africa v Hugo
1997 (4) SA 1
(CC)
at
36B-C.”
[33]
A sub-committee appointed by the Council of the first respondent to
advise Council on the roles and responsibilities of various
senior
positions in the merged universities presented its report entitled:
“Faculty Management: Role and Responsibilities,
Recruitment and
Selections of Faculty Management and Leadership” to the Senate
of the first respondent on 26 October 2004.
Final charges were
effected on the document and the Senate adopted it. The adopted
document was then forwarded to Council: The
report which is dated 19
October 2004, was quite comprehensive as it dealt with various issues
extensively.
[34]
The only eligibility requirement which appears to have been the
subject of discussion with the Senate appeared in the report
initially as:
“
Any
permanent academic at the level of Senior Lecturer or above will be
Eligible to be an Academic Co-ordinator.”
“
Senior
Lecturer” was subsequently altered to “any lecturer”.
Again in this group, an academic co-ordinator could
only be appointed
from permanent academic staff member.
[35]
The report of the sub committee is conspicuously silent on the
reasons underlying the appoint of Head of School and an Academic
Co-ordinator having to come only from permanent academic members of
the first respondent to the exclusion of temporary academic
members.
It is noteworthy that this limitation was not made applicable to
other categories of the academic staff.
[36]
The principle of continuity suggested by the first respondent is, in
any view not convincing. The first respondent could very
well have
applicants for the Head of School who are on a 5 year contract which
is in its initial stages. Appointing one such as
Head of School for
the maximum period of 3 years would still bring about continuity
after the end of the three year term. As evidence
showed, permanent
staff are not immune from tendering resignation as staff members soon
after the three year term. A staff member
who has been a Head of
School may also have to go on retirement. It is noteworthy that the
first respondent has appointed temporary
staff as “Acting Head
of School.”
[37]
I can conceive of no bar against a temporary staff member achieving
academic excellence and through extensive research work,
to earn
respect by his or her peers. Respect in a discipline may therefore be
well earned by a staff member notwithstanding the
temporary nature of
his appointment. It remained undisputed that the applicant earned
such respect with his peers at “UDW”.
He was both an
academic leader and a manager.
[38]
As I consider the reasons preferred for the inherent operational
requirements of the first respondent, I find none that I can
regard
as permanent attributes or quality, forming an essential element of
such requirements. The reasons given, in my view, come
across as
requirements based on the preferences of first respondent’s
senior employees.
[39]
The conclusion is inevitable, in my view, that the eligibility
requirement of a Head of School set by the first respondent
is
unfairly discriminatory.
[40]
From 27 November 2004, when the applicant was informed by the first
respondent that he regrettably did not qualify to apply
for the Head
of School position, till 21 June 2005, when he served the first
respondent with a letter of resignation he had to
suffer the
humiliation of an unfair discrimination at the hands of the first
respondent. He is the one who took the initiative
of ameliorating or
mitigating the intensity of his suffering. Such suffering was indeed
short-lived as he found himself a better
position elsewhere. In his
evidence and through an amendment of the relief he seeks, he made it
abundantly clear that he would
not like to consider coming back as an
employee of the first respondent. That secures the position of the
second respondent. In
my view he is entitled to some salutary
compensation. I have taken into account the undisputed fact that he
has ascended to a higher
position which is seeing to it that he is
financially better off. I am of the view that the just and equitable
compensation to
the applicant should be the equivalent of 6 months’
remuneration calculated at the rate of remuneration the he was then
receiving
on 31 July 2005.
[41]
Accordingly, the following order will issue:
(1) The first respondent
is ordered to pay six months’ remuneration to the applicant,
calculated at the rate of the remuneration
the applicant was
receiving on 31 July 2005.
(2) The payment is to be
made within 14 days from the date hereof.
(3)
The first respondent is to pay the costs of this claim.
_____________
Cele
AJ
DATE
OF HEARING: 2/4/2007
DATE
OF JUDGMENT: 31/8/2007
FOR
THE APPLICANT: ADV. T. SEERY INSTRUCTED BY JAY REDDY
ATTORNEYS
FOR
THE RESPONDENT: MR A.J. CHADWICK OF SHEPSTONE & WYLIE
ATTORNEYS