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[2011] ZALCD 30
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Dalais v Telkom SA (D644/08) [2011] ZALCD 30 (22 November 2011)
11
Not Reportable
Of interest to other judges
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case no: D644/08
In the matter between:
PERTH DALAIS
..............................................................................................
Applicant
and
TELKOM S.A
..............................................................................................
Respondent
Heard
:
24 February 2011
Delivered
:
22
November
2011
Summary: Application in terms of
Section 10(6)(a) of Act 55 0f 1998. Respondent establishing that
discrimination on gender basis
fair in that it accorded with the
approved Employment Equity Plan. Application dismissed
JUDGMENT
GUSH J
This matter concerns an application
filed by the applicant in terms of Section 10(6)(a) of the
Employment Equity Act.(The Act)
1
In his statement of case, the
applicant, who is an employee of the respondent, averred that he had
applied for an advertised position
and had been unfairly
discriminated against on the grounds of his gender by the respondent
in that the respondent had not shortlisted
nor interviewed him for
the post (and accordingly was not appointed). The respondent had
only considered female applicants for
the position and advised the
applicant ‘in an endeavour to meet the company’s targets
for employment equity preference
was given to female applicants’.
The applicant sought an order that he
be granted a ‘protected promotion to a S6 post which is
equivalent to and has the
same terms and conditions as the M6 post
the applicant applied for’; alternatively compensation.
In addition, the applicant applied
for condonation for the late filing of his statement of claim. The
applicant recorded in his
application for condonation that the
dispute arose on 21 November 2007. He referred the dispute to the
CCMA
2
on 6 February 2008. The matter was
conciliated on 7 March 2008 and a certificate was issued recording
that the matter remained
unresolved. The statement of claim was
filed on 17 November 2008 and the application for condonation was
filed on 21 December
2010. The respondent opposed the applicant’s
application for condonation.
The parties submitted that the issue
of condonation would be determined primarily on a consideration of
the applicant’s
prospects of success and they indicated that
they had agreed to proceed by way of a stated case. In the
circumstances, the matter
proceeded with the parties addressing both
the merits of the matter and the question of condonation.
Having agreed to proceed by way of
stated case, the parties recorded that they intended to rely on the
minutes of the pre-trial
conference and the common trial bundle.
The relevant facts which were
recorded as being common cause in the pre-trial minute and during
argument were as follows:
In July 2006, the applicant had
applied for and was offered by the respondent, a position of branch
manager in Mthatha, a position
the applicant elected not to accept;
On 27 August 2007, the respondent
advertised two positions for branch managers in the Durban area.
The posts were, as was the
Mthatha post, level S6/M6 posts;
The applicant applied for these
positions but was not shortlisted and according was neither
interviewed nor appointed to either
post by the respondent;
When the applicant enquired as to
why he had not been shortlisted he was advised that ‘in an
endeavour to meet the company's
targets for employment Equity,
preference was given to female applicants.’
As at August 2007, the respondent
had achieved and exceeded its employment equity targets in respect
of female representation
at S6/M6 post level within the consumer
markets division but had not at that time achieved its employment
equity targets as
set out in its approved employment equity plan in
respect of female representation at S6/M6 level nationally.
That the S6/M6 level, for the
purposes of the respondent’s employment equity plan,
constituted an occupational level as
opposed to an occupational
category.
As regards the
onus
, the
parties agreed that the applicant having alleged discrimination, the
respondent bore the
onus
of proving that the discrimination
was fair.
It was further agreed that in the
event that the respondent failed to prove that the discrimination
was fair then in order to
succeed with his claim for a protective
promotion, the applicant bore the
onus
of proving that not
only would he have been shortlisted and interviewed but that he
would have been appointed if the respondent
had done so. If the
applicant failed to discharge the
onus
of establishing that
he would have been appointed he would be required to prove that he
was entitled to be awarded compensation
for the unfair
discrimination confined to the fact that he had not been considered
for shortlisting.
Simply put, the issue in dispute in
respect of the
onus
referred to in paragraph 8 above, in
light of parties having agreed that the respondent had not met its
overall gender target
in the category employment level M6/S6 but had
met its target in the consumer markets division was:
Did the respondent’s approved
employment equity plan which stipulated national workforce targets
for female employees
in the employment level M6/S6 provide that
these targets should be measured and applied by its performance
against its workforce
in all divisions or should the respondent
have measured and applied by its performance in respect of its
workforce individually
in each of the respondent’s divisions
in the employment level M6/S6; and
Consequently was the respondent
accordingly entitled to fairly exclude the applicant from the
shortlisting (and therefore from
the interview and possible
appointment) on the strength of its employment equity plan, which
showed it to be underrepresented
in respect of female employees in
respect of its national workforce in the employment level M6/S6.
The second issue to be decided was:
if the exclusion of the applicant from the shortlisting and
interviewing process was unfair
whether, if he had been shortlisted
and interviewed, the applicant would have been appointed to one of
the two positions. The
onus
referred to in paragraph 9 above
applied to this issue.
The following additional facts which
are relevant to the issues referred to above emerged during
arguement.viz:
In response to the advertisement,
the respondent received 226 applications of which 135 met the
minimum criteria. 52 of the
135 were female of which 13 were
shortlisted.
Whilst the successful candidates
both fell within the definition of a designated group in the
category “women”,
the applicant and the successful
candidates also fell within the definition of a designated group in
the category “black
people”
3
.
The respondent is a national
organisation operating within th e Republic of South Africa. The
respondent’s approved employment
equity plan identified the
designated group representivity levels and targets (including and
particularly gender targets) by
occupational level across the
organisation as a whole. The plan did not divide these levels or
targets either by division or
geographically.
Section 6 of the Act provides:
‘
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 … gender…
(2)
It is not unfair discrimination to-
(a)
take affirmative action measures consistent with the purpose of this
Act; or …’
In so far as the plan identifies
occupational levels as opposed to occupational categories,
particularly as regards gender, for
the organisation as a whole and
records profile percentages and targets in each level, it makes
logical sense not to apply the
targets individually by
distinguishing between the respondent’s operating divisions
and/or geographically.
Save for an averment made by the
applicant that in the consumer markets division, in which the two
vacancies fell, the S6/M6 tasks
were mostly administrative and
office bound and that in the network centre and operations divisions
the tasks were mainly technical
and performed in the field, neither
party produced any evidence to show that it was necessary or
desirable to distinguish the
targets on a gender basis per different
division. In fact, the applicant’s averment that females are
inherently more suited
to perform administrative and office bound
tasks as opposed to technical tasks performed in the field is in
itself unjustified
and discriminatory.
The applicant also argued, with
reference to performance management plans, which were included in
the trial bundle, that these
plans required managers to obtain or
reach the employment equity targets in their respective divisions
and that therefore these
plans should be interpreted to form part of
the respondent’s employment equity plan. The applicant, in
making this submission,
relied on clauses in the introduction to the
plan which read:
‘…
senior
management and executives will assume ownership of the implementation
of our employment equity program and its concomitant
sub programmes.
This ownership will be reflected through our performance management
system which will, effective from 1 April 2007,
include employment
equity in the performance contracts as a performance deliverable for
managerial staff up to the group executive
officer’
4
;
and
‘
the
elements of our performance management system have been revised to
ensure that line managers are individually held accountable
for
delivery on employment equity. This approach will ensure that
employment equity is viewed as business imperative as well
.’
5
I am not persuaded, in light of the
provisions of the Act, that these references to the responsibility
of management to implement
the respondent’s employment equity
plan in their various divisions nor the fact that this
responsibility is included in
the divisional managers’
performance contracts serves to qualify the approved employment
equity plan. In the absence of
the respondent’s plan
specifying individual targets for the different divisions, it
remains the responsibility of the respondent
to apply its approved
plan which does not set targets per division.
Section 20 of the Act specifically
requires:
‘
(1)
A designated employer [to] prepare and implement an employment equity
plan which will achieve reasonable progress towards employment
equity
in that employer's workforce.
(2)
An employment equity plan prepared in terms of subsection (1) must
state-
(a)
the objectives to be achieved for each year of the plan; …
(c)
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; …
(f)
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;
(h)
the persons in the workforce, including senior managers,
responsible for monitoring and implementing the plan
;’ (my
emphasis)
The extracts from the respondent’s
employment equity plan referred to in paragraph 16 above constitute
nothing more than
compliance with section 20 (2) (f) and (h) of the
Act. The contents of the performance contracts with the relevant
managers do
not form part of the approved plan.
Likewise, as the respondent has
identified in its employment equity plan the underrepresentation of
people from designated groups
and the numerical goals or targets
required to achieve the equitable representation within each
occupational level in its
entire
workforce nationally, this amounts to
nothing less than compliance with section 20 (2)(c) of the Act.
The applicant averred further that
the respondent’s failure to specifically state in the
advertisement the fact that the
position was specifically reserved
for female applicants that this amounted to unfair discrimination.
In this regard there was
no evidence to suggest that the applicant
was unaware of the contents of the respondent’s employment
equity plan or the
respondent’s Staffing (recruitment and
selection) Policy (both of which formed part of the trial bundle).
The Staffing
policy clearly provides that ‘the respondent is
an equal opportunity employer’ and that ‘Preference
shall be
given to employees from historically disadvantaged groups,
namely, Africans, Coloureds, Indians, women and persons with
disabilities,
also referred to as Employment Equity candidates’
and ‘the inherent job requirements as contained in the job
description,
should be the criteria for including and excluding
candidates on the shortlist, taking cognizance of the EE
requirements’.
6
The mere fact that the advertisement
does not state that the position is reserved for females only does
not render the discrimination
per se
unfair. The respondent
argued that it was not a policy requirement to include in the
advertisement that the posts were earmarked
for females. The
respondent further submitted that the post had not been earmarked at
the time of advertising for female candidates
only and that in
accordance with its staffing policy the respondent took into account
the “EE requirements” in shortlisting
only females when
the shortlisting process took place. This averment was not
challenged. I am not persuaded in the circumstances
therefore that
by not specifying that the post was to be filled only by females
that it rendered the discrimination unfair.
I am accordingly satisfied that the
respondent’s actions in excluding the applicant from the
shortlisting process, which
resulted in him not being called for an
interview on the grounds that only females were considered,
constituted discrimination
but that the discrimination fell within
the provisions of section 6(2)(a) of the Act and as such does
constitute unfair discrimination.
I accordingly find that the
respondent has succeeded in proving that the discrimination was
fair.
Whilst it is therefore not necessary
to consider whether the applicant had established that he would have
been appointed to the
position had he been interviewed, I am of the
view that even had the respondent failed to establish prove that the
discrimination
was fair, the applicant did not manage to establish
that if he had been interviewed he would have been appointed.
It was argued by the respondent that
in the event it was found that the respondent had not unfairly
discriminated against the
applicant the applicant’s
application for condonation should be refused in that the applicant
would have no prospects of
success.
As regards the degree of lateness o,
the respondent in opposing the applicant’s application for
condonation argued that
the time limit prescribed by section 136(1)
of the Labour Relations Act
7
applied viz. that the referral should
be made within 90 days. The applicant relying on the decision in
Siegelaar v Minister of
Safety and Security
8
argued that the referral should be
made within a reasonable time. In this matter, the Honourable Judge
Murphy held:
I
am persuaded that s 136(1) might be of application to referrals made
under s 10(6) (b) of the EEA, meaning that referrals to consensual
arbitration at the instance of the CCMA would have to be done within
90 days of the commissioner issuing a certificate, failing
which an
application for condonation would be necessary and would succeed only
in the event of good cause shown. However, I doubt
the subsection can
apply in respect of referrals to the Labour Court in terms of s
10(6)(a). Section 136 deals with the appointment
of a commissioner as
an arbitrator and does not deal with adjudication of disputes by the
Labour Court. Besides, there is no other
provision in part C or D of
chapter VII of the Labour Relations Act which imposes any time-limit
within which disputes must be
referred for adjudication to the Labour
Court once conciliation has failed and the commissioner has issued a
certificate of outcome
in terms of s 135(5)(a). It would seem
naturally to follow in accordance with common-law principles that if
the dispute remains
unresolved after conciliation any party wishing
to refer the dispute to the Labour Court should do so within a
reasonable time.
This then raises the question of what amounts to a
reasonable time within the context of the EEA.
9
The court in
Siegelaar
however
went on to hold that:
Hence,
although s 136(1) of the Labour Relations Act has no direct
application, the 90-day period is certainly a contextual yardstick
against which to measure the issue of delay when no time-limit has
been specifically enacted
.
10
It is in the circumstances necessary
in such matters to assess the applicant’s degree of lateness
against this “yardstick”
The applicant’s referral
was 165 days late. Whilst the applicant argued that this was not an
inordinate delay, it is bearing
in mind the “yardstick”,
a substantial delay and in the particular circumstances of this
matter a delay which should
not be condoned.
Therefore, in light of my finding
that the respondent has established that the discrimination was fair
and bearing in mind the
lateness of the referral, the applicant’s
application for condonation must be dismissed.
As far as costs are concerned and
particularly as the applicant is still employed by the respondent
and that the respondent was
represented by an employee, it is not in
the interests of fairness to award costs against the applicant.
I therefore make the following order:
The applicant’s application to
condone the late referral of his statement of claim is dismissed with
no order as to costs.
_______________________
D H GUSH
Judge
APPEARANCES
APPLICANT: Mr B Mgaga: Knight Turner
Attorneys
RESPONDENT: Mr A P Berry: Respondent’s
Employee
1
Act
No. 55 o1998.
2
Commission
for Conciliation, Mediation and Arbitration.
3
Section
1 Act No. 55 of 1998.
4
Common
trial bundle page 13.
5
Common
trial bundle page 31.
6
Trial
Bundle Page 4 and 5.
7
Act
No. 55 of 1995
8
(2005)
26 ILJ 133 (LC).
9
Siegelaar
v Minister of Safety and Security
at page 139 para 24.
10
Siegelaar
v Minister of Safety and Security
at page 144 para 37.