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[2011] ZALCPE 2
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National Education, Health and Allied Workers Union and Another v Office of the Premier: Province of the Eastern Cape and Another (P02/07) [2011] ZALCPE 2; [2011] 7 BLLR 681 (LC); (2011) 32 ILJ 1696 (LC) (2 February 2011)
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN PORT ELIZABETH
REPORTABLE
Case number P02/07
In the matter between:
NATIONAL EDUCATION, HEALTH
AND ALLIED WORKERS UNION
….............................................
1
st
Applicant
MNYAMEZELI NTSIBA
…............................................................
2
nd
Applicant
And
OFFICE OF THE PREMIER: PROVINCE
OF THE EASTERN CAPE
….......................................................
1
st
Respondent
MICHELLE GOLIATH
…...........................................................
2
nd
Respondent
JUDGMENT
Molahlehi J
Introduction
In this matter the applicants claim that the first
respondent in appointing the second respondent and not the second
applicant(the
applicant) commited an unfair discrimination against
him in breach of the provisions of the Employment Equity Act 55 of
1998
(the EEA). The relief sought is in the following terms:
“
(i) Declaring the
non-appointment of the second applicant to the post of Senior
Manager: Legal Support to be unfair labour practice
in terms of
section 186(2)
(a) of the
Labour Relations Act 66 of 1995
.
(ii) Declaring the preference of a female candidate
to/over the Applicant, without signed Employment Equity Plan as an
unfair discrimination
and is in contravention of
section 6
of
Employment Equity Act 55 of 1998.
(iii) Declaring the appointment of the second
applicant to the post of Senior Manager: Legal Support Services on
the same terms
and conditions applicable thereto on the date of the
advertisement.
(iv) Alternatively awarding compensation to the
second applicant . . .”
Background facts
The background facts in this matter are generally
straight forward and common cause. The applicant who was at the time
of the
dispute employed by the respondent challenged his non
appointment after applying and being interviewed for the position of
senior
manager: legal support division of the respondent.
During January 2006, the respondent advertised three
senior managers: legal support posts in two news papers with
national circulation.
The closing date for the submission of the
application by people interested in those positions was set as 3
rd
February 2006. In addition to the requirement of degree
qualifications the advertisement required the applicants to have
extensive
experience in the legal field associated with the public
sector. The advert also specifically stated that; “
[t]he
Provincial Administration of the Eastern Cape is an equal
opportunity, affirmative action employer.”
It was further
stated in the same advertisement that, “
women and people
with disability are encouraged to apply.”
The interviews of the shortlisted candidates were held
on the 17
th
March 2006. The interviewed candidates were
scored as follows:
Mboya 186
Kruger 184.67
The second applicant 171
The second respondent 163.6
The first and second candidates were recommended to
fill two of the advertised positions. The second applicant and the
third respondent
were recommended to fill in the remaining post. The
third respondent was then recommended for appointment on the
strength of
employment equity and affirmative action considerations.
The appointment of the third respondent was effected with the view
to
addressing the gender balance in the shared legal services
division.
The applicant being unhappy with his non appointment
lodged a grievance and it having not been resolved to his
satisfaction referred
a dispute concerning discrimination to the
Commission for Conciliation, Mediation and Arbitration (the CCMA).
Following the failure
to resolve the dispute at conciliation the
applicant filed a statement of case with this court.
Issues for determination
The issues for determination are set out in the
pre-trial minutes as follows:
“
4.1 Whether or not the
respondent was at law entitled to affirm Goliath (the third
respondent).
Whether or not the respondent discriminated against
the applicant within the contemplation of the
Employment Equity
Act.
Whether
or not, and in the event that the
respondent discriminated against the second applicant, the second
applicant is as a consequence
thereof entitled to the relief he
seeks.
Whether or not the applicants were bound to join
Goliath as a party to the proceedings.”
The first and only witness of the respondent Mr
Beningfield, a former employee of the respondent testified about the
equity employment
targets which the respondent had set for itself.
He testified that the respondent under the leadership of the Premier
of the
Province had taken a decision to mainstream gender in the
employment of senior females in the province. The employment equity
policy was according to him adopted by the province initially
included both the policy and the plan.
As concerning the facts of this matter Mr Beningfield
testified that initially the second respondent did not apply for the
advertised
post and only one female applicant in the list of those
who had applied had been shortlisted. There was a concern that this
was
likely to lead to failure to meet the equity plans of the
province. It was for that reason that it was decided to approach the
second respondent and requested her to submit her curriculum vitae.
After receipt of the CV the second respondent was invited
to the
interview.
Mr Beningfiled further testified that after the
interview the interview panel found that the applicant and the
second respondent
were competent. The panel however recommended the
second respondent because of gender and race considerations. The
third respondent
is a coloured female and the applicant is an
African male. Had the applicant been appointed, the gender balance
would not have
been addressed, according to Mr Beningfield.
During cross examination Mr Beningfield conceded that
the advertisement clearly stated that the faxing of CVs and late
applications
would not be allowed. He further conceded that the
application of the second respondent was not received in terms of
the requirements
of the advertisement in that it was received after
the closing date. When asked as to whether he sought authority to
include
the name of the third respondent amongst the applicants, he
said that they were advised by the HR to include her amongst the
applicants. He also stated that they believed that it was a policy
imperative to have the third respondent head-hunted and thus
included in the short listing. He however conceded that there was
nothing in the policy that gave the interviewing committee
the power
to head-hunt.
The applicant called one witness to support his case,
Mr Kheleketha who at the time of the dispute was a manager in the HR
department.
He testified that after the closure of submission of the
applications a meeting was held between senior managers of the
respondent.
A day after that meeting he received instruction from
his manager that he should include two other names in the list of
the shortlisted
candidates.
According to Mr Khelekheta the process which the
respondent ought to have followed once it realised that it would not
be able
to achieve the gender equity was the following:
Either to continue with the interview despite the
indication that the gender equity would not be addressed or,
Stopped the process and re-advertised the post and if
suitable candidates were found after that than conduct
head-hunting.
Mr Khelekheta testified that the approach adopted by
the respondent of including the name of the third respondent after
the closure
of the application had never happened in the workplace
of the respondent.
Mr Khelekheta conceded that at the time females as a
designated group were underrepresented in the section in which the
second
respondent was appointed in. At that stage there was a need
to affirm both white and coloured females in the unit. He also
conceded
that ultimately what the respondent did by including the
third respondent after the closure of the applications was in line
with
what is envisaged in the recruitment policy and specifically
the clause dealing with skills search.
In relation to the numerical and non-numerical goals Mr
Khelekheta conceded that the category of employees most
necessitating
transformation intervention were coloured both males
and females in the Eastern Cape Province.
Legal frame work applicable evaluation
[17] The case of
applicant has to be weighed within the two main aspects of the EEA,
namely prohibition of unfair discrimination
and the duty of a
designated employer to implement affirmative action measures and an
equity plan. Affirmative action measures
are defined in
section 15
as
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. There is no dispute
that the
first respondent is a designated employer.
The affirmative
action measures as envisaged in
s15
(2) includes:
“
(a)
measures to identify and eliminate employment barriers, including
unfair discrimination, which adversely affect people from
designated
groups;
(b) measures
designed to further diversity in the workplace based on equal dignity
and respect of all people;
(c) making
reasonable accommodation for people from designated groups in order
to ensure that they enjoy equal opportunities and
are equitably
represented in the workforce of a designated employer;
(d)
subject to
subsection
(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.”
[18]
In Harksen v Lane N.O. 1997(11) BCLR 1489 (CC)
the court held that:
“
One of the factors in
determining whether discrimination measure has an unfair impact was
to determine the nature of the provisions
and the purpose sought to
be achieved by it”.
In explaining how a remedial or restitutionary measure
may as a factor have a discrimatory import the court had the
following to
say:
“
[51] In order to determine
whether the discriminator provision has impacted on complainants
unfairly, various factors must be considered.
These would include:
(a) the position of the complainants in society and
whether they have suffered in the past from patterns of disadvantage,
whether
the discrimination in the case under consideration is on a
specified ground or not;
(b) the nature of the provision or power and the
purpose sought to be achieved by it. If its purpose is manifestly not
directed,
in the first instance, at impairing the complainants in the
manner indicated above, but is aimed at achieving a worthy and
important
societal goal, such as, for example, the furthering of
equality for all, this purpose may, depending on the facts of the
particular
case, have a significant bearing on the question whether
complainants have in fact suffered the impairment in question…
(c) with due regard to (a) and (b) above, and any
other relevant factors, the extent to which the discrimination has
affected the
rights or interests of complainants and whether it has
led to an impairment of their fundamental human dignity or
constitutes an
impairment of a comparably serious nature.
These factors, assessed objectively, will assist in
giving “precision and elaboration” to the constitutional
test of
unfairness. They do not constitute a closed list. Others may
emerge as our equality jurisprudence continues to develop. In any
event it is the cumulative effect of these factors that must be
examined and in respect of which a determination must be made as
to
whether the discrimination is unfair.”
[19] The above
has been interpreted as saying that the remedial measures are not
necessarily beyond the bounds of scrutiny to determine
its fairness.
The Constitutional Court has subsequent to
Harksen
drawn a distinction between a remedial measures that meet the
requirements of s 9 (2) of the Constitution and those that do not
attract the presumption of unfairness including those that do not
comply but which could still be found to be fair in terms of s9(3)
of
the Constitution.
[20] It should be noted that the promotion of non
remedial objectives through affirmative actions are not necessarily
prohibited
by the provisions of s 9(2) of the Constitution. Where the
affirmative action measure is used for purposes of the objectives
specified
in s9 (2) of the Constitution then it is for the employer
to show that the non-remedial objective was necessary for operational
requirement and that justified the preferential treatment.
Section 9(2) of the constitution reads as follows:
“
Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and
other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may be
taken.”
[21] The case of the applicant as I understood it is
mainly based on the complaint that he was discriminated against
because an
irregular process was followed in the appointment of the
second respondent. The essence of his case is that the process
followed
in selecting the second respondent was irregular in that the
submission of the CV’s for the application for the position was
already closed at the time the third respondent was invited to submit
her CV.
[22] The applicant does not however dispute that the
respondent has a right to embark on a targeted recruitment in the
selection
and appointment of its employees. His argument is that in
the event where the respondent has initiated the recruitment process
by way of advertising, the targeted recruitment can only be utilised
after that process i.e. the advertising process is complete
and no
suitable candidates could be found or by way of stopping the process
if it is apparent that the objective of finding a candidate
that
would address the equity objectives is not found in those who had
applied.
[23] In support of his contention that the appointment
of the second respondent was irregular, the applicant relied on the
decision
of the then industrial court in
George v Liberty Life
Association of SA 1996(8) ILJ 986(IC).
The interpretation he
gives to that decision is that an employer can not deviate from
procedures that it had agreed upon without
good reasons.
[24] The decision in the
George’s
case was
based on the unfair labour practice in terms of s46 (9) of the 1956
Labour Relations Act. The
case pleaded by the applicant in the
pleadings is that the respondent was not entitled to affirm the third
respondent because the
respondent did not have an affirmative action
policy in place. The plea in this respect is formulated in terms of
section 20
of the EEA which requires designated employers to prepare
and implement an equity plan. In this respect the plea is formulated
as follows:
“
30
In
terms of
section 20
of the EEA a designated employer must prepare and
implement an employment equity plan which will achieve reasonable
progress towards
employment equity in that employer’s
workplace.”
[25] The applicant could not sustain the plea, as his
and only witness, Mr Khelekheta conceded when cross-examined that the
respondent
had an employment equity plan whose objective was to make
progress towards employment equity at the workplace. The respondent’s
equity plan includes the provincial targets of females in management;
numerical and non-numerical goals/objectives and targets
and
workplace analysis. The provincial targets as at the time this
dispute arose for females at senior management level was 50%
and the
current status then was 34%. In the equity plan the respondent had
set out the relevant statistical information revealing
the profiles
of divisions, level of race, gender and disability as informed by its
affirmative action policies.
[26] The argument of the non existence of the
affirmative action plan having been disposed of what seems to remains
for determination
is the complaint about the targeted recruitment
processes.
[27] As indicated earlier in this judgement, the case of
the applicant was not that the targeted recruitment was not
permissible
but that it was not properly done. In dealing with this
issue and the broader issue of the alleged discrimination it should
be
borne in mind that the applicant led only one witness, Mr
Khelekheta. The applicant did not himself testify. It is also
important
to bear in mind the number of concessions made by Mr
Khelekheta and in particular the fact that if the respondent did not
affirm
the third respondent on the basis of gender, the division in
question would have had less than 20% representivity. Without the
affirmation of the 3
rd
respondent the division would have
had six senior managers who were males. Even after the appointment of
the third respondent the
division still remained below 40 % in terms
of representivity.
[28] Turning back to the issue of procedural complaint
by the applicant, I agree with Mr Wade for the respondent that the
core of
the case so far made by the testimony of Mr Khelekheta has to
do more than anything else with the complaint about the procedural
aspect of how the recruitment of the third respondent was effected.
That does indeed pose a challenge to the case of the Applicant
as
this court jurisdiction is limited to adjudicating over
discrimination claims in terms of the provisions of the EEA. I also
agree that no case has been made in terms of the allegation of
discrimination.
[29] It is common cause that the third respondent scored
less points than the Applicant. It has however not been disputed that
the
affirmation action policy of the first respondent was rational
and goal directed which made the targeted recruitment in the
circumstances
of this case appropriate. The targeted recruitment was
directed at affirming a coloured female with the view to addressing
both
the gender and the racial imbalance at that particular time.
[30] The version of Mr Khelekheta is that the procedure
followed in the appointment of the second respondent was irregular in
that
the respondent did not follow the provisions of the recruitment
Policy: Eastern Cape Provincial Administration. When cross-examined
why he regarded the procedure as irregular Mr Khelekheta said that
the first respondent ought to have either stopped the recruitment
process or completed it and if no suitable candidate was found to
then embark on a targeted recruitment. He could not however point
out
in the policy a provision supporting his version. It should be noted
that the policy on recruitment is in a form of a collective
agreement.
[31] The version of the applicant is unsustainable if
regard is had to the structure of the recruitment policy. The
structure of
the recruitment policy does not even support any
possible inference that the parties intended the process contended by
Mr Khelekheta.
[32] In my view the Applicant’s case would still
have been unsustainable even if Mr Khelekheta’s assertion about
the
procedure was correct. He asserted that the policy was rigid in
terms of the procedure he set out for the purposes of targeted
recruitment. According to him the respondent could not under any
circumstances deviate from the provision of the policy. This is
unsustainable if regard is had to the stated purpose of the policy.
The purpose of the policy is stated at the very beginning of
that
document as follows:
“
The purpose of this policy
is to provide guidelines to be followed when recruiting candidates
for employment in the Eastern Cape
Provincial Departments. This is in
line with relevant legislation and applicable guidelines pertaining
to recruitments. The uniqueness
and the needs of the province formed
the basis on which the policy is formulated.”
[33] I have already stated that the structure of the
policy does not support the contention of the Applicant in as far as
recruitment
procedure is concerned. In terms of the recruitment the
policy is divided in three stages. Stage 1: Advertising; Stage 2:
Interview
and Stage 3 Appointments. The targeted recruitment and
affirmative action both form part of Stage 1 of the policy. In terms
of
targeted recruitment which is part of Stage 1: Advertising, the
policy provides as follows:
“
Skills search
(Head-Hunting)
– the individually based method of recruitment can be used to
seek suitable candidates for positions where difficulty is
experienced to recruit them as well as candidates from historically
disadvantaged groups. The same normal recruitment procedures
still
apply when an individual is head-hunted. This method will be applied
as a last resort with all attempts through open recruitment
have
failed.”
[34] The case put forward by the applicant is that
before embarking on targeted recruitment or head-hunting the
respondent needed
to stop at Stage 1 and stop the process or complete
Stage 1 and 2 before embarking on that process. The applicant
contends that
the Respondent ought to have done this even though it
was clear from the short-listing that the affirmative action
objectives would
not be achieved through completing the Stage 1:
Advertising process of the recruitment policy.
[35] The process was also attacked by the Applicant on
the basis of lack of authorisation by the Director General. According
to
Mr Khelekheta he had to send a written motivation to the Director
General for him to have authorised the targeted head hunting
recruitment. There is nothing in the policy that says that the
authority of the Director General is required before embarking on
targeted recruitment. There is also nothing in the policy the
requires authorisation for target recruitment to be writing. There
is
however evidence by the Respondent that the Director General or his
designate was in the meeting where the approach to embark
on the
targeted recruitment was approved.
[36] In the light of the above I am of the view that the
Applicant’s claim stands to fail. I do not however believe that
the
cost should in law and fairness follow the result.
[37] In the premises the Applicant’s claim of
unfair discrimination is dismissed with no order as to costs.
Molahlehi J
Date of Hearing : 6 & 7 September 2010
Date of Judgment : 2 February 2011
Appearances
For the Applicant : B. Z. Mjebeza
Instructed by: NEHAWU
For the Respondent: Adv. R.B. Wade
Instructed by: State Attorney
: