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[2011] ZALCD 18
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Kwazulu-Natal Department of Transport v Devar and Others (D 866/09) [2011] ZALCD 18 (30 November 2011)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case
no: D 866/09
In the matter between:
KWA-ZULU
NATAL DEPT OF TRANSPORT
..................................
Applicant
and
U
DEVAR
..............................................................................
First
respondent
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
............................
Second
respondent
COMMISSIONER
PUNGI PILLAY
.......................................
Third
respondent
SJC
SIMELANE
.................................................................
Fourth
respondent
Heard: 18 November 2011
Delivered: 30 November 2011
Summary:
Review – ULP – failure to promote –
application of employment equity plan. Employer did not accept
recommendation
of selection panel. Arbitrator found ULP in terms of s
186(2)(b) of LRA. Award reasonable. Application for review dismissed
with
costs.
judgment
STEENKAMP J
Introduction
The applicant (“the Department”) advertised a position
for assistant manager, office services. The position was at
salary
level 9 in the public service. The first respondent, Ms U Devar
(“the employee”) applied for the position.
At the time,
she was acting in the post of assistant manager at salary level 9 in
another section of the Department.
The employee was shortlisted and interviewed by a selection panel.
She scored the highest of all shortlisted candidates at 82.8%.
The
selection panel recommended that she be appointed.
The head of Department rejected the recommendation of the selection
panel, and re-advertised the same post.
The employee applied again, and, once again, she obtained the
highest score at 84.9%. The next highest score was 73% obtained
by
the fourth respondent, Ms SJC Simelane.
Once again the selection panel recommended the employee for the
post. Once again the Head of Department rejected the recommendation.
Ms Simelane, who scored 11.9% less in the opinion of the selection
panel, was appointed instead.
The employee referred a dispute to the second respondent, the
General Public Service Sectoral Bargaining Council. The third
respondent, commissioner Pungi Pillay (“the arbitrator”),
found that the Department had committed an unfair labour
practice
and ordered the Department to promote the employee to the post of
Assistant Manager: Office Services at salary level
9 at its head
office in Pietermaritzburg.
Grounds of review
The Department seeks to have the arbitrator's finding reviewed and
set aside. Its main complaint is that the employee was not
a member
of a designated "target group", being black women; and
that the arbitrator did not take this into account
when coming to
the conclusion that she did.
In order to consider this argument, it is unfortunately necessary to
refer to racial classifications under the now repealed Population
Registration Act. This is so because the Department insists on
making a distinction between "black African" women and
"Indian" women, despite the clear definition in the
Employment Equity Act
1
that “black people” is a generic term that means
“Africans, Coloureds and Indians”. For the sake of this
judgment, I have to record that the employee, Ms Uven, would have
been classified as “Indian” and Ms Simelane as
“African”
under apartheid legislation.
Consideration of the award
The award spans 47 pages. The arbitrator sets out the evidence led
comprehensively. She then applies the provisions of section
186(2)(a) of the Labour Relations Act
2
(“the LRA”) and the relevant case law to the evidence.
In considering whether the award is reasonable as envisaged
in
Sidumo
3
,
I need only consider the pertinent aspects of the award that the
Department takes issue with.
The Department has implemented an affirmative action and employment
equity policy. In order to implement this policy, the selection
panel was called upon to use certain guidelines during the selection
process in order to facilitate “numerical targets”
according to race and gender. These guidelines included the
following:
“
3.1
the selection committee must recommend the highest scoring candidate
on condition that he/she is from the target group based
on the
numerical goals as recommended by the Assistant Manager: Employment
Equity;
3.2. should the highest scoring
candidate not be from the target group, the selection committee must
recommend the target candidate
provided that there is not more than a
10% difference between the top scoring candidate target candidate."
Firstly, it is common cause – as the arbitrator noted –
that, in this case, there was more than a 10% difference
between the
employee who was the top scoring candidate and the one who was
appointed.
There was a further dispute as to whether the employee was from the
"target group" or not.
The advertisement for the post did not specify any target group. It
simply stated that: "The Provincial Administration of
KwaZulu-Natal is an equal opportunity affirmative action employer.”
It was common cause that Indian women were “undersubscribed"
in the Department. However, the applicant relied on the
fact that
Indian women were "oversubscribed" in the directorate:
corporate services in which the advertised post fell
and "African"
women were "undersubscribed".
The chairperson of the selection committee, Mr Riaz Ahmed, gave
evidence at arbitration. He also developed the employment equity
plan for the Department, including the employment equity targets. He
confirmed that Indian women were undersubscribed in the
Department.
The arbitrator considered these aspects and the relevant case law,
especially the decision of the Supreme Court of Appeal in
Gordon
v Department of Health, KwaZulu-Natal.
4
She came to the conclusion that the selection panel that followed a
balanced approach based on policy, his words and legislation
in
recommending the employee as the most suitable candidate for the
post. She found that it was clearly unfair of the Department
not to
accept this recommendation as it did not follow its own guidelines.
The arbitrator therefore found that the Department
conduct
constituted an unfair labour practice as envisaged in section
186(2)(a) of the LRA.
Even though the facts in
Gordon
are distinguishable in that
the Department in that case had not implemented an employment equity
plan, the reference to the case
is not misguided, as the applicant
would have it. In the case before her, the arbitrator took into
account the Department’s
own employment equity plan. In terms
of that plan –
Indian women were undersubscribed;
Even if the highest scoring candidate was not from the “target
group”, a candidate from the target group could
only be
appointed if there was no more than a 10% difference between their
scores; that was not the case here; and
the selection panel recommended the employee, ie the highest
scoring candidate by a large margin, in terms of the Department’s
own policy.
I can find nothing unreasonable in this conclusion. On the contrary,
it is the decision of the Department, in contradistinction
to the
recommendation of its own selection panel, that was unreasonable,
irrational and arbitrary.
In these circumstances, and taking into account the considerations
of law and fairness, the Department should be ordered to pay
the
employee's costs.
Conclusion
The application for review is dismissed with costs.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANT: Ms MM Posemann
Instructed by Lambert & associates.
FIRST RESPONDENT: Mr B Macgregor of Macgregor Erasmus.
1
Act
55 of
[1811] EngR 449
;
1998.
2
Act
66
of 1995.
3
Sidumo
& another v Rurstenburg Platinum Mines Ltd and others
(2007)
28
ILJ
2405
(CC).
4
(2008)
29
ILJ
2535
(SCA);
[2008] 11 BLLR 1023
(SCA).