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[2010] ZALCJHB 81
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Minister of Safety And Security and Another v Govender (JS164/03) [2010] ZALCJHB 81 (16 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JS 164/03
In
the matter between
THE
MINSTER OF SAFETY AND
SECURITY 1st
Applicant
THE
SOUTH AFRICAN POLICE SERVICES
2nd
Applicant
and
KASAVAL
GOVENDER
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
The applicants in this matter are the respondents in a case in
which the respondent claims to have been unfairly discriminated
against
when promoting candidates to Commissioner’s posts in a
number of promotion rounds between February 2000 and June 2001. The
respondent in this application and the applicant in the referral of
the unfair discrimination claim is, a Senior Superintendent,
who
unsuccessfully applied for these posts.
2.
The applicant claims he was unsuccessful because the employer failed
to adhere to its Employment Equity Plan and further claims
to have
been unfairly discriminated against in terms of section 6 of the
Employment Equity Act 55 of 1996 on the basis of race,
gender and/or
political belief in all three rounds of post promotions. He also
claimed that the failure to promote him amounted
in the alternative
to an unfair labour practice.
3.
The relief the applicant seeks is retrospective promotion to the rank
of Director backdated to 1
st
August 2010.
4.
The interlocutory application was launched on 28 August 2003. It was
set down for a hearing in 2005 but was postponed
sine die
by
consent. For reasons which are not apparent, it was only next
enrolled on 20 August 2010, but it seems the registrar failed to
issue a notice of set down to the applicants and the matter was
postponed to 19 October 2010, when it was finally heard.
5.
The applications deal with various special pleas raised by the SAPS.
In the event of any one of them being successful the
respondent’s path to trial will be blocked. The
in limine
objections all of which relate to the court’s
jurisidiction may be summarized as follows –
5.1. The
court lacks jurisdiction because aspects of the dispute referral
process were irregular, namely:
5.1.1.
the referral of some or all of the disputes was late, in particular
the disputes which the
respondent alleges arose in February 2000 and
June 2001, and
5.1.2.
the disputes mentioned were not referred for conciliation nor were
they conciliated as required
by the Equity Act.
5.2. The
respondent did not comply with the Employment Equity Act55 of 1998
in that he should first have used
the compliance mechanisms of
Chapter V of the EEA, which entails obtaining a compliance order from
a Labour Inspector. Only if
that compliance order is not implemented
can the Director General of the Department of Labour approach the
Labour Court for an
order.
5.3.
The SAPS has no vacancy for
the post of Director and all the Directors’ posts which were
advertised and for which the applicant
applied have been filled.The
respondent ought to have joined all the other officers who were
appointed to the post of Director.
6.
The merits of these
objections are considered below.
Evaluation
of the Special Pleas
7.
After failing to resolve his
grievance about the promotions, the respondent referred the matter to
the Safety and Security Sectoral
Bargaining Council (‘the
SSSBC’) on 28 February 2002. During that conciliation process
the applicant became aware that
he would have to refer the
dispute to the Commission for Conciliation, Mediation and Arbitration
because the dispute had
a an unfair discrimination component, which
the SSSBC did not have jurisdiction to deal with it.
8.
The CCMA referral form
referred by the applicant on 28 May 2002 describes the dispute as
arising on 28 February 2002. However
in summarizing the facts
of the dispute, the respondent states: “
Employee
applied for three rounds of post promotions without success. Realised
at conciliation at SSSBC that matter related to unfair
discrimination
as well.
” (sic)
9.
In his previous
referral to the SSSBC on 2 January 2002, the applicant had identified
the dispute as arising on 29 October 2010.
It is not entirely clear
why this date is identified, but it appears it may be linked to the
response he got to an internal grievance
he lodged with the
respondent sometime after August 2001.
The
time periods governing the referral of unfair discrimination
disputes.
10.
The dispute resolution
process governing a claim of unfair discrimination in terms of
section 6 of the Employment Equity Act 55
of 1998 (‘the EEA’)
is governed by section 10 of the same Act. Section 10(2)
states:
“
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.”
11.
Section 10(7) of the EEA
provides that:
“
The
relevant provisions of Parts C and D of Chapter VII of the Labour
Relations Act, with the changes required by context, apply
in respect
of a dispute in terms of this Chapter.
”
12.
The effect of this provision
is that the acts or omissions that the respondent complains of all
concern his non-appointment in the
various rounds of appointments of
Directors dating back to August 2001 and prior to that. He made a
referral to the SSSBC in January
2002, which would have fallen within
the six month period mentioned, except that the SSSBC was the wrong
forum to deal with the
matter and he only referred his dispute to the
CCMA on 28 May 2002. As such even a dispute which had arisen at the
end of August
2001 ought to have been referred in early March, making
his referral to the CCMA approximately two months late. Obviously in
respect
of his earlier non-appointments the referral is that much
later.
13.
As mentioned above, the
dispute referral to the CCMA referred to all three rounds of
appointments. The respondent filed a condonation
application in
respect of the late referral of the unfair discrimination dispute
with the CCMA on or about 26 June 2002. In his
affidavit he made it
clear that his dispute referred to all three rounds of promotion. The
condonation application was unopposed
by SAPS, and on 4 October 2002
was granted.
14.
The applicants never sought
to review the condonation ruling which accordingly still stands.
Belatedly, they now try to attack the
effective validity of that
ruling as a gateway to the further dispute resolution procedures in
the LRA. The first basis of
attack is to suggest that the
condonation ruling is so unclear because it is not apparent from the
ruling which of the promotion
disputes the commissioner was
considering. Accordingly they argue no reliance can be placed on it
as a basis for the dispute to
proceed to conciliation.
15.
They argue further
that the ruling does not indicate it was the intention of the
condoning commissioner to permit the applicant
to refer all the
disputes to the Labour Court and consequently the respondent has
failed to establish that the Labour Court has
jurisidiction to hear
the matter.
16.
Having regard to the
available evidence of the preliminary procedures, the respondent’s
referral form to the CCMA was sufficiently
clear to indicate that his
complaint referred to more than one round of promotions. In this
affidavit in support of his condonation
application he set out in
more detail the various rounds of promotion under consideration
namely those advertised in February 2000
(posts 589,590,591,592 and
530), February 2001 (posts 1060 and 1061), and May or June 2001 (post
1150). The fact that the condonation
ruling does not specifically
refer to these disputes, does not in my mind mean that the ruling
cannot be relied on when it seems
very clear which appointment
disputes the applicant was referring to in his application..
17.
The applicants also contend
that because the respondent alleged in his referral that the dispute
arose on 28 February 2002, that
is patently incorrect because the
acts or omissions on which his unfair discrimination claim is based
arose prior to that when
SAPS failed to appoint him to the various
posts he had applied for. However, based on the content of his
affidavit in support of
his application for the late referral of the
dispute, it is difficult to see how the commissioner who granted
condonation could
have been misled by the date on the referral form.
In any event, if he had not applied his mind to the matter before him
that was
a matter for review and no review of the condonation ruling
was instituted.
18.
In the circumstances, in the
absence of the condonation being set aside, that ruling must stand.
19.
However, the applicants also
argue that the pre-requisite of conciliation under the EEA is a
substantial one and the mere fact that
the matter has been set down
for conciliation and a certificate of outcome was issued is not a
sufficient basis for the unfair
discrimination case to be referred to
the next phase in the LRA’s dispute resolution process. They
appear to base this on
the wording of section 10 (5) and (6) of the
EEA. The imperative expressed in section 10(5) of the EEA is
identical to that expressed
in section 191(4) of the LRA, namely that
the commission “
must
attempt to resolve the dispute through conciliation”
.
20.
The only difference between
the procedures is that under section 191(5) the dispute may be
referred to arbitration or adjudication
once 30 days have passed or a
certificate of outcome issued, whereas section 10(6) refers to the
referral taking place if conciliation
remains unresolved after
conciliation.
21.
In this matter it is clear
no conciliation did take place. The commissioner who issued the
certificate of outcome on 1 January 2003
indicated that the statutory
time period of 30 days for conciliating the dispute had expired
and accordingly a certificate
of non-resolution was issued. Although
both the EEA and the LRA clearly intend that conciliation of disputes
should occur, the
EEA dispute resolution procedure merges with that
of the LRA in that Section 10(7) of the EEA stipulates that the
provisions of
Parts C and D of the Chapter VII of the LRA apply to a
dispute under the EEA with the necessary changes required by the
context.
If the drafters of the EEA had not intended the provisions
of 135(5) to apply to the the conciliation stage of disputes, it is
reasonable to suppose it would have been expressly excluded rather
than incorporated. In the circumstances, I do not believe it
was the
intention of the EEA that as dispute could fester at the conciliation
stage indefinitely merely because the conciliation
process had not
been attempted, any more than it was the intention in the LRA.
22.
In conclusion I do not see
any obstacles in the referral process of this matter to the Labour
Court save that the unfair labour
practice claim relating to
promotion cannot be adjudicated by the court.
Jurisdiction
over the unfair discrimination claim.
23.
The
applicants rightly claim that to the extent that the respondent’s
unfair discrimination claim relies on a right to enforce
an
employer’s employment equity plan such a claim is not one that
an individual employee can raise in the wake of the decision
Dudley v
City of Cape Town & another (2008)) 29 ILJ 2685 (LAC).
Essentially that case re-affirmed the principle laid down in
the
judgment in the court a quo that it was not competent to pursue an
individual claim based on unfair discrimination on account
of the
employer’s failure to adhere to an employment equity plan until
the enforcement provisions provided in chapter V of
the EEA had been
exhausted. This matter is so old not even the judgment in the
court a quo had been handed down when the
matter was referred to the
Labour Court and at least until the decision of the LAC on 21 August
2008, the outcome on this issue
could not have been known as there
was another Labour Court decision to the contrary.
[1]
24.
To overcome this potentially
fatal defect the applicant was constrained to argue that his unfair
discrimination claim does not relay
on a claim under Chapter V of the
EEA relating to a failure to give effect to affirmative action
measures but an unfair discrimination
claim in terms of chapter II of
the EEA.
25.
An examination of the
respondent’s claim as set out in his statement of claim reveals
significant reliance on allegations
that his applications would have
been more favourably considered if the employer had adhered to its
provincial Employment Equity
Plan. Thus he points out that he would
have been seventh rather than fourteenth in line for
appointment to one of nine ‘generic
posts’ of Deputy Area
Commissioner in Guateng available to sixteen shortlisted candidates
including himself. Similarly he
appears to allege that if the
applicants had stuck to the plan he would have been preferred for
appointment in posts 591 and 563.
He maintains also that given his
slightly higher score than successful candidates for posts 593,
597,598 and 616 he ought to have
been the preferred candidate if
representivity was taken into account. Similarly, for post 592 he
asserts that the SAPS did not
adhere to the Employment Equity Plan
for the service. Similar complaints are reflected in his statement of
claim in relation to
his non-appointment in posts 1061 and 1060.
26.
In summary, it is a
pervasive feature of his claim of being unfairly discriminated
against in the various promotions that if SAPS
had applied its
Employment Equity plan properly he would have been successful in one
or more of the promotions. Moreover, in setting
out the legal
conclusions he seeks to establish for his claim, he characterizes his
claim in the following terms;
“
9.2.1
It is the contention of the Applicant further that the Second
Respondent unfairly discriminated against the Applicant in failing
to
adhere to the Employment Equity Plan of the South African Police
Service, when promoting candidates during the mentioned rounds
of
post promotions.
9.2.2
The Applicant further avers that the Second Respondent unfairly
discriminated against him on the basis of race, gender and/or
political belief in all thee of the mentioned rounds of post
promotions in terms of
section 6
of the
Employment Equity Act.
”
27.
What
the above submission
reveal is that his primary claim appears to have been based on the
failure to give effect to Employment Equity
Plans. The
applicant is right that he does say that he relies on
section 6
of
the
Employment Equity Act
, but nowhere do the facts alleged in his
statement of claim make out a case other than one based on the
Employment Equity Act, rather
than one based on his race or political
beliefs or one of the other types of impermissible discrimination.
28.
Accordingly the applicants’
special plea that the Labour Court does not have jurisdiction to hear
this matter because it relies
on the non-enforcement of the
provisions of Chapter V of the EEA, when there is no evidence
that the enforcement mechanisms
of the EEA for such a claim have
already been exhausted, must succeed.
Non-Joinder
29.
To the extent that this is
still an issue, I am satisfied, based on the authority of the
judgment in
Gordon v Department of Health
[2008] ZASCA 99
;
2008 (6) SA
522
(SCA)
at 529,
[10]
where
Mlambo, JA made it clear that the successful appointee whose
suitability for the post is indirectly challenged by the
unsuccessful
employee who argues he or she was the most
suitable candidate, has no legal interest in the matter where the
relief sought
is directed against the employer for
compensation.
Costs
30.
There is an ongoing
relationship between the parties and the referral by the applicant
cannot be said to have been
mala
fide
or frivolous,
particularly in the light of the considerable and understandable
disappointment he suffered in the various positions
he applied for.
Order
31.
Consequently,
(a)
The
applicants’ special pleas are all dismissed save for the
special plea that this court does not have jurisdiction to hear
the
respondent’s unfair discrimination claim is upheld on the basis
that he ought to have exhausted the dispute resolution
provisions
provided for disputes relating to Chapter V of the Employment Equity
Act. 55 of 1998.
(b)
The
Labour Court also has no jurisdiction to hear the respondent’s
unfair labour practice claim which falls with the jurisdiction
of the
Commission for Conciliation, Mediation and Arbitration
(c)
In
consequence of the successful special pleas raised above, the
respondent’s referral of his alleged unfair discrimination
claim is dismissed.
(d)
No
order is made as to costs
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 19 October 2010
Date
of judgment: 16 November 2010
Appearances:
For
the applicants: Mr A Mosam instructed by the State Attorney
For
the respondent: Ms M Joubert instructed by Mitchell and Kruger
Attorneys
[1]
Harmse v City of Cape Town
(2003) 24 ILJ 1130 (LC)