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[2011] ZALCCT 45
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Jimlongo v Belthazar Restaurant and Wine Bar (C1132/10) [2011] ZALCCT 45 (29 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Not reportable
Case no: C1132/10
In the matter between:
KHAYALETHU JIMLONGO
...............................................................................
Applicant
and
BELTHAZAR RESTAURANT AND WINE BAR
............................................
Respondent
Date of hearing: 19 August 2011
Date of judgment: 29 August 2011
JUDGMENT
CONRADIE AJ:
This matter came before me as an “Application for Default
Judgment” after the Applicant served a Statement of Claim
on
the Respondent but received no response.
According to the Applicant, prior to joining the Respondent he had
been employed in the restaurant industry for a number of years
as a
waiter. A few years back he relocated to Cape Town and found
employment with the Respondent. The Respondent was not however
prepared to offer him a position as a waiter as it was felt that he
did not have “fine dining” experience. The Applicant
accepted this arrangement on the basis that it would give him an
opportunity to get in. However, the Applicant subsequently
discovered that when vacancies arose these were given to young white
employees who in his words “could barely hold a tray”.
At some stage he referred a dispute to the CCMA relating to what he
felt was unfair discrimination. Subsequent to this referral
one
black runner has been promoted to the position of waiter. The other
black employees that are employed as waiters by the Respondent
are
not South African citizens.
The Applicant argued that he has been unfairly discriminated against
on the basis of his race and that this is contrary to the
Employment
Equity Act 55 of 1998
.
Given that there was no appearance for the Respondent I have to
accept the Applicant’s version that he has been discriminated
against on the basis of race.
As far as relief is concerned, the Applicant asked that I order that
he be paid the difference in income between what he currently
earns
and that which he would have earned as a waiter. However, the
Applicant was unable to give an indication as to the amount
of money
which a waiter earns. In the circumstances I am of the view that an
order for compensation is not appropriate in this
matter. A more
appropriate order is one which requires the Respondent to promote
the Applicant to the position of waiter when
the next vacancy
arises. In the circumstances I make the following Order:
The Applicant is to be promoted to the position of waiter when the
next such vacancy arises.
There is no order as to costs.
__________________
Conradie AJ
Appearances:
For the applicant: Khayalethu Jimlongo (In person)