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[2012] ZALCJHB 123
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Stone v South African Police Service (J 4180/01) [2012] ZALCJHB 123; [2013] 1 BLLR 70 (LC); (2013) 34 ILJ 1619 (LC) (22 October 2012)
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: J 4180/01
In the matter between:
STONE, JAN EDMUND
Applicant
and
SOUTH AFRICAN POLICE SERVICE
Respondent
Date of trial: 13-15 July 2011
Judgment:
22 October 2012
Summary:
(Unfair discrimination claim-promotion-employment equity plan adopted
but not approved by Department of Labour –
application of plan
– final selection phase not shown to be fair – no proof
that applicant suffered prejudice as a
result of final selection
phase – cause of non-appointment not proven to be on account of
unfair racial bias)
JUDGMENT
LAGRANGE, J
Introduction
When this dispute arose in 2000, the applicant in this matter was a
Captain who had initially been employed by the South African
Police
Services in 1984 and subsequently rejoined the service in 1990.
Throughout his career he had worked at various Local Criminal
Record
Centres, and amongst other things had attended a number of forensic
evidence training programs. In March 2000 he applied
for a number of
available posts. Had he been successful he would have been promoted
from Captain to a Superintendent in the new
position. The post in
contention in this dispute was post 384 which was a Superintendent's
position in the Local Criminal Record
Centre, Pretoria Central.
The equity weighted two stage selection process
The promotion selection process was conducted in two stages without
interviews being conducted. Firstly, the candidates were
evaluated
by an area evaluation panel. The area panel's assessment was then
forwarded to a provincial panel, which then shortlisted
candidates
in terms of national directives issued by the National Commissioner.
During the first stage, a detailed 20 page report was drawn up on
certain pertinent attriubutes of the applicant and a rating
was
attached to them. The attributes evaluated were the candidate’s
responsibility, knowledge and insight, human relations,
management
capability and productivity. The area panel rated the applicant very
highly in respect of all these individual qualities
and he achieved
a score of 42 out of a potential 45. This rating identified him as a
Class 1 officer.
At the provincial level, the second stage, the assessment of the
applicant’s suitability for the post was done in terms
of
prescribed criteria for which certain maximum points were allocated,
namely:
the training skills, competence and knowledge necessary to meet the
inherent requirements of the post (9 points);
posts occupied by the candidates, including his/her present post
and station (9 points);
representivity (9 points);
the needs of the S A P S in terms of the strategic objectives and
operational plan (9 points);
the particular circumstances of the candidate (9 points), and
acting in a higher post by the candidate and the period (10
points).
In terms of circular 8/1/1 of 11 November 1999 headed ‘Promotion:
Members of the South African Police Service’, it
was stated
that among other things:
promotions were subject to the availability of funds and where
applicable the existence of vacancies;
the "transformation quotas for each rank" would be
“strictly complied with”;
the criteria and process to be followed for appointments regarding
post promotions still had to be agreed on with employee
organisations, which would be the subject matter of a later
circular.
A subsequent circular entitled ‘Post Promotions: Members of
the South African police service: Inspector to Captain and
Captain
to Superintendent and Equivalent Occupational Ranks’ was
issued on 23 December 1999. It announced, amongst other
things, that
posts had been set aside for the promotion of members who qualified.
Vacancies were to be announced internally on
computer and members
were entitled to indicate their preference for up to 3 posts. They
would not be interviewed for appointment
but would be "identified
for posts on the basis of their evaluation reports”.
Applicants who achieved the highest
ratings during evaluation would
“not necessarily be appointed and promoted in posts." The
task of evaluation panels
was to determine which candidates were
suitable for promotion. Only those found suitable for promotion
would be considered for
the filling of posts. The provincial panels
were required to make a recommendation "for the placement of a
candidate in
the post and motivate the recommendation. It further
stated that "attention will also be paid to representivity”
in
considering members for placement in advertised posts. Guidelines
on this were to be provided at a later stage, after consultation
with the recognised employee organisations. The provincial
Commissioner was responsible for referring the particulars of "each
successful candidate and the post for which he/she is recommended"
to the National Commissioner for consideration. The recommendations
would then be considered by a panel at head office which would make
a recommendation to the National Commissioner for a decision.
It was
this circular which also identified the selection criteria cited in
paragraph [4] above, which the provincial evaluation
panel applied.
In the provincial panel assessment the applicant fared less well
than he had at the area level, obtaining 44 points out of a
potential 55. This gave him an aggregate points score of 86. No
record was available to explain how points were allocated in
terms
of each of the above-mentioned criteria. The successful candidate
Hara obtained an area level rating of only 28 which identified
him
as a class 3 officer but at the provincial level he obtained 52
points, giving him an aggregate rating of 80 points. However,
as a
result of a grossly negligent calculation error, Hara was wrongly
credited with a score of 90 points, which placed him as
the second
highest rated candidate of the five shortlisted candidates.
Even with that erroneously inflated score, Captain Venter, a white
female, obtained a higher aggregate score of 91. On the face
of the
aggregate points awarded, Venter ought to have been appointed, given
that the second phase of assessment included a weighting
of the
assessment based on the race and sex of the candidate, and
accordingly the final score ought to have represented an assessment
which had already taken account of affirmative action objectives. We
know from the provincial assessment criteria that representivity
could account for 9 of the 55 points, meaning that up to 16% of the
assessment score was based on race and sex.
As it happened, the applicant was not the only unsuccessful
candidate who was unhappy with the process. Both Venter and a
Captain
Beukes also challenged their non-appointments to the post as
unfair labour practices. Their awards were referred to in the course
of the evidence, but for the purposes of this matter, only Venter’s
award is of interest. In the case of Venter, she challenged
the
procedural irregularities of the process. It appears from the award
that despite being rated most highly her name was removed
from the
short list of candidates because of a directive received from Head
office during the process to the effect that the
racial
representivity after the first selection process did not achieve a
high enough level, and needed to be improved. The award
records the
initial racial representivity level of recommended candidates to
have been 59%, which then rose 70% after candidates
like Venter were
removed from the running. Although the award does not specifically
mention the designated categories referred
to under the term
‘representivity’ it appears to have concerned the ratio
of black to white recommended candidates,
where ‘black’
candidates included black, Indian and coloured candidates. This
would be in accordance with other policy
documents presented in the
matter before me.
Thus, apart from a built-in weighting for affirmative action
purposes, which allowed individual candidates to be compared with
each other, it appears that the employer had adopted the view that
every round of appointments had to reflect the ratios it was
striving for, irrespective of the outcome of the weighted assessment
process. One consequence of this approach meant that an
individual
candidate’s chances of appointment would not depend solely on
an already weighted assessment process of the
suitable candidates,
but would be subject to an override having the result that otherwise
successful candidates in the assessment
process could be removed
from contention until the desired racial ratio was achieved. As a
result, if the outcome of the two
stage assessment process resulted
in recommended appointments of say 4 white candidates and 6 black
candidates, one of the white
candidates could be substituted with a
previously unsuccessful black candidate to achieve the desired
white:black ratio of 30:70.
In this matter, there was no record provided of the provincial
assessment phase even though records should have been kept. However
the parties agreed in the pre-trial minute that no prejudice
resulted from this. The respondent also did not provide any clarity
on what determined the applicant's exclusion from consideration
after
the provincial assessment phase was completed. A
possible explanation lies in one of the justifications offered by
the respondent,
namely that the points allocated by the provincial
panel rather than the aggregate points awarded to an individual
determined
the preferred candidate. The only alternative explanation
is that because both he and Venter obtained a higher rating at the
end of the weighted individual assessment process, the decision to
prefer Hara over Venter and the applicant must have been a result
of
a subsequent process. At this juncture it must be noted that if the
selection had been made on the basis of the equity weighted
two
stage process, based on the aggregate points scored, Venter and not
the applicant would have been the successful candidate.
The applicant lodged a grievance following the appointment of Hara.
What the applicant found offensive about Hara’s appointment
was that he believed Hara was a much inferior candidate to himself
when his experience and qualifications were taken into account
and
felt that he had been unfairly discriminated against on grounds of
race. Under cross-examination he modified these views
somewhat. In
response to his grievance, he was advised that the SAPS was required
to address representivity in terms of its Employment
Equity Plan
(‘the EEP’) EEP and that Hara was appointed to post 384
in view of the fact that he was the better candidate
who obtained
higher points than the applicant. Before evaluating the merits of
the applicant’s case, the respondent’s
EEP needs to be
outlined .
SAPS Employment Equity Plan
Although it was an issue of much dispute, it was in fact conceded by
SAPS, that its EEP had not been approved by the Department
of Labour
at the time the round of appointments took place, in which the
applicant participated. The adopted EEP was submitted
to the
Department on 1 June 2000 for approval. Nonetheless, SAPS argued
that it did not have to have an approved plan in order
to defend its
failure to appoint the applicant on affirmative action grounds. This
will be addressed later. For present purposes
the relevant features
of the plan for this case are outlined below.
SAPS EEP was adopted pursuant to a very broadly stated resolution 1
of 1998. The EEP was intended to apply for four years starting
on 1
June 2000. The aim of the plan was “to implement affirmative
action measures to ensure that suitably qualified persons
from
designated groups are equally represented in all occupational
categories and levels of the workforce”. It also stated
that:
“Whereas the focus of employment equity is on black people,
women and persons with disabilities, no employment policy
or
practice will be established as an absolute barrier to prospective
or continued employment or advancement fo persons not from
designated groups.”
In terms of the EEP, certain targets were set. In 2000 the
identified target ratio designated:non-designated members were 50:50
at management level and 60:40 at other levels. Importantly, the plan
also specified that “recruitment at all levels for
the
duration of the plan” would be:
male (70 %) , female (30%), and
non-designated group (30%), designated group (70%).
Provision was also made in the plan for the development of an
employment equity plan for each of 20 divisional and provincial
so
called ‘business units’. There was no evidence presented
to suggest that this was in fact done and the targets
referred to in
the circulars and in the minutes of the National panel all seemed to
be nationally determined targets.
Somewhat confusingly, a directive issued on 3 March 2000 stated
that:
“
3.3....In order to promote
representivity, the following guidelines are laid down which have to
be achieved as far as possible taking
into consideration the
composition of Province/Divisions at present.
3.3.1 50%/50% in terms of gender
3.3.2 70%/30% in terms of race”
These figures were reiterated as the desired targets when the
National evaluatioin panel convened under the auspices of the
National Commissioner’s office to scrutinise the
recommendations from Divisions and Provinces, but in the subsequent
deliberations
the panel decided:
“
... That the panel will strive towards
the following ratios to enhance representivity:
100% - 70% males
30% females
70% Blacks (Africans, Indians, Coloured)
70%
males
30%
females
30% whites
70%
males
30%
females"
After the provincial assessments had been submitted, the view from
the office of the Divisional Commissioner was that representivity
of
members of designated groups could still be improved. In a letter to
the Provincial Commissioner of Guateng, the Divisional
Commissioner
mentioned that in respect of the 341 posts advertised only 247 out
of 626 candidates from designated groups were
recommended. In
improving the figure, the Commissioner directed that the numerical
goals as set out in the EEP had to be used
‘as a guideline’.
If the number of advertised posts mentioned in the letter is
considered, then 72,4 % of those posts
would have been filled by
candidates for designated groups. Why this was considered
unsatisfactory given the targets identified
in the EEP, is unclear.
Nonetheless, what is clear is that when the National panel came to
consider the recommendations for promotions in Gauteng at
its
meeting on 12 and 13 July 2000, it reached the following conclusion:
"The Panel is not satisfied with the movement in
addressing
representivity. The recommendations are referred back with the
emphasis on black males.”
Neither the applicant nor the respondent's witness, Mr P J
Ramathoka, provided any insight into what took place when the
recommendations
were referred back to the provincial panel for
reconsideration in the light of the National Panel's direction. The
only document
shedding any light on what should have happened is a
circular issued on 7 July 2000 in which the National Panel’s
unhappiness
with representivity is reiterated and the divisional and
Provincial panels were directed to strive to achieve the goals set
out
in the EEP.
Other than referring to targets, no guidance was given as to how
these panels were to go about substituting candidates from
designated groups for recommended candidates from nondesignated
groups. The only guidance provided in the circular concerned the
type of motivation that had to be given in cases where greater
representivity could
not
be achieved. In those cases, the
panel was asked to provide explicit reasons why candidates from
designated groups had not been
recommended.
By the time the National panel reconvened on 10 and 11 August 2000,
it was satisfied that the desired improvements, at least
in respect
of racial representivity, had been achieved. The summary record of
the discussion on the position in Gauteng read:
"Assistant
Commissioner Prinsloo indicates that there was a major shift with
regards to the race composition. The gender
issue is however still
to be addressed. It is accepted.”
Evaluation
The applicant's complaint is that he was unfairly discriminated
against on grounds of race when Hara was appointed because he
was
the better candidate objectively speaking and Hara was only
appointed because of his race.
The respondent's defence was that it did not act arbitrarily when
selecting candidates. The rationale for its choice of Hara
as
opposed to the applicant has a number of strands. Firstly, it said
that it was operating in terms of an approved employment
equity plan
adopted pursuant to resolution 1 of 1998 and consequently any racial
bias was justified in terms of that plan. In
this sense its defence
was not very different from that advanced by the employer in the
case of
Gordon v Department of Health: Kwazulu-Natal
(2008) 29 ILJ 2535 (SCA)
.
1
Secondly, it argued that since Hara obtained the highest
marks of all candidates at the provincial level he was in fact the
preferred
candidate. Lastly, the respondent contends that, in any
event, achieving the highest ratings during evaluation was no
guarantee
of appointment because the ultimate decision was made by
the National Commissioner and not by the evaluation panel. Each of
these
justifications are considered below.
Hara’ s points ranking
The respondent effectively conceded that there was an arithmetic
error in the calculation of Hara’s aggregate points. Clearly
once the error is eliminated Hara had an aggregate of 80 points
compared with the applicant's 86 points. When the respondent
originally justified Hara’s appointment, it partly explained
it by way of saying that Hara was the better candidate of
the two
because he had obtained higher points.
At the trial it was argued that only the points allocation made by
the provincial evaluation panel carried any weight, but no
evidence
was led in support of this contention. The form on which the
respective scores of the regional and provincial evaluation
panels
were recorded and totalled, suggests that it is more probable that
the aggregate score was the one that was considered
relevant. It
seems most likely on the evidence that when the respondent said that
Hara was the better candidate, it was relying
on the erroneous
score.
That erroneous score was not the result of any racial bias in the
scoring process, but rather the result of gross negligence
on the
part of the person completing the form. That might have given rise
to a separate complaint under the unfair labour practice
regime.
Employment equity plan justification
However, even when the respondent cited Hara’s points as a
reason for appointing him, it was also clearly of the view that
affirmative action considerations were relevant to the choice of
Hara as the successful candidate rather than any of the others
who
were shortlisted. At the trial it sought to justify the selection of
Hara on the basis that it was not necessary that he
be the best
candidate but only that he was suitable. Ramathoka referred in this
regard to s 15(2)(d)(i) of the EEA, which lists
as one of the
requirements of affirmative action measures implemented by
designated employer that they should include measures
“to
ensure the equitable representation of
suitably qualified
people from designated groups in all occupational categories and
levels in the workforce” (emphasis added). Under
cross-examination,
the applicant conceded that Hara would qualify as
a suitable candidate for the post, though clearly not the best in
his view.
However, the applicant complained that the respondent never
explained the weighting attached to race in the evaluation process
and in any event argued that the respondent could not rely on its
employment equity plan as it had not yet been approved by the
Department of Labour at the time it was applied to his application
for promotion in 2000.
Regarding the second issue, in
Gordon’s
case, the
provincial health department had no plan or policy of affirmative
action, and the successful candidate was appointed
simply on the
basis that his appointment would promote representivity. The SCA
held that his appointment could not constitute
a policy or practice
“
designed to achieve the adequate protection and
advancement of persons or groups or categories of persons
disadvantaged by unfair
discrimination, in order to enable their
full and equal enjoyment of all rights and freedoms”,
which was a precondition for defending an appointment on the basis
of race prior to the EEA.
2
But nowhere in the SCA decision did the court say that only an
employment equity plan which had been approved by the Department
of
Labour in terms of the EEA could provide a defence to an unfair
discrimination claim. Moreover, the current wording of the
EEA does
not suggest this is a pre-requisite. Section 6(2) of the EEA reads:
“
(2) It is not unfair discrimination to-
(a) take affirmative action measures consistent with the purpose
of this Act; or
(b) distinguish, exclude or prefer any person on the basis of an
inherent requirement of a job.
The purpose of the EEA set out in section 2 reads:
The purpose of this Act is to achieve equity in the workplace by-
(a) promoting equal opportunity and fair treatment in employment
through the elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the
disadvantages in employment experienced by designated groups, in
order
to ensure their equitable representation in all occupational
categories and levels in the workforce.”
Nowhere in these provisions is it suggested that only affirmative
action measures approved by the Department of Labour in terms
of the
EEA could provide a defence to an unfair discrimination claim.
On the first issue, Ramathoka could provide no clarity on whether
Hara had been credited with nine points for representivity
at the
provincial evaluation stage. However, I do not think that it would
have taken the matter any further if he could have
confirmed the
precise number of points awarded to Hara under this criterion for
the following reason. Assuming that Hara had
been awarded the
maximum number of points for representivity, the fact of the matter
is he obtained a lower aggregate number
of points than the applicant
did. It follows therefore that the preference he was afforded over
the applicant and Venter could
not have been a result of the
allocation of representivity points at the provincial evaluation
stage. Equally, it follows that
if Hara was given preference on the
basis of affirmative action criteria, it could only have occurred
when the National panel
directed the provincial panel to increase
the representivity of designated groups among the recommended
candidates for promotion.
As mentioned above, it is unclear how the provincial panel decided
which non-designated recommended candidates should yield to
designated candidates who had not been recommended, but who were
nonetheless suitably qualified for promotion. The respondent
ought
to have explained how that process was done fairly.
3
In the absence of any evidence that the process of eliminating
recommended candidates from the non-designated group and
substituting
them with suitable candidates from the designated group
was a fair process, it is not unreasonable to conclude that the
method
of substituting nondesignated recommended candidates with
designated candidates who had not been recommended might have been
arbitrary. It is the respondent to bore the onus for proving that it
was fair.
If the only candidates under consideration were the applicant and
Hara, it would then it would not have been unreasonable to
conclude
that the respondent had failed to demonstrate that the applicant was
not unfairly prejudiced by the re-evaluation of
the provincial
panel's recommendations with a view to ensuring greater
representivity. In that case, it might be possible to
conclude that
the employer had failed to demonstrate that the applicant had been
fairly passed over in favour of Hara at the
final stage.
But the factual situation confronting the court is more complicated.
We know from the points obtained by Venter, Hara and the
applicant
following the original eprovincial panel evaluation that Venter
ought to have been the preferred candidate. Even if
the respondent
has failed to establish that at the final selection stage it acted
fairly in terms of the EEP, it does not followthat
if it were not
for that, the applicant would have been appointed, since the first
contender for the post would have been Venter.
It is true, that it was part of the applicant's case that the mere
allocation of any points for representivity was in and of
itself
unfairly discriminatory. So, when it was put to him that Venter was
the more deserving candidate than himself, his response
was that
since she had also been given an unknown number of points under the
criterion of representivity on account of her sex,
he would have had
a similar complaint if she had been appointed rather than him. I
cannot see that an affirmative action program
which allocates a
number of points for representivity to candidates as part of the
overall evaluation to arrive at a recommended
candidate must be
per
se
unfair. Provided the points are allocated consistently, and
do not have the effect of barring persons from non-designated groups
from consideration, it has the advantage of allowing suitable
candidates to be compared against one another taking uniform account
of equity considerations.
It is so that the respondent did not provide a breakdown of how the
nine points attributable to representivity were allocated
at the
second stage of the evaluation process. Its failure to do so, might
well have provided some ground for the applicant to
complain that
there was no evidence to support a claim that, equity considerations
were fairly applied. However, as stated above,
it is clear that the
outcome of the second stage evaluation did not determine why the
applicant was not selected, unless one
accepts that the outcome was
determined solely on the basis of the erroneous score attributed to
Hara, in which case unfair discrimination
does not arise as the
cause for his complaint.
If the allocation of points did not determine Hara’s
selection, and even though the respondent did not prove that it
acted fairly in terms of the EEP when it decided to appoint Hara, it
does not follow that the applicant was unfairly discriminated
against because it cannot be said that he was prejudiced in the
sense that he most probably would have been appointed in the
absence
of such action by the respondent. In the circumstances, I am not
satisfied that the applicant has demonstrated a causal
link between
the respondent’s failure to prove it acted fairly under the
EEP at the final selection stage, and his non-promotion
to post 384.
Discretion of the National Commissioner
The gravamen of this case relates to whether or not the respondent
was entitled to rely on its EEP and whether the applicant
was
unfairly discriminated against when he was not appointed as a result
of a racial preference being applied. The role played
by the
National Commissioner in making a final decision is intimately and
inextricably bound up with the direction made by the
National panel
and its endorsement of the re-evaluation made by the provincial
panel. No other evidence was led on the distinct
role played by the
National Commissioner. It must be assumed he simply endorsed the
final recommendations made. His decision
also stands to be justified
with reference to the affirmative action measures adopted by SAPS.
Accordingly, this point bears
no further separate consideration
since it has been addressed in the discussion of the final
recommendations adopted by the National
panel.
In conclusion, I am satisified that even though race played a
significant part in the appointment of Hara to the post, the
applicant has not established that this resulted in unfair
discrimination against him.
Order
The failure of the respondent in 2000 to promote the applicant to
post 384 at the rank of Superintendent, and its appointment
of
Captain S J Hara to the post instead, cannot be ascribed to unfair
discrimination against the applicant on account of race
4
in terms of
s 6
of the
Employment Equity Act, 55 of 1998
.
Accordingly, the applicant’s claim that he was unfairly
discriminated against when Captain Hara was appointed to the said
post is dismissed.
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: Mr. H GERBER instructed by
Mitchell & Kruger Attorneys
RESPONDENT: Mr. RM ARENDSE SC and Mr.
Kgomotso Ramalefe instructed by the State Attorney, Johannesburg
1
At
2541-2,[7] the Mlambo, JA, as he then was, characterised the case
thus: “
The CCMA had ruled that the Department of Justice
had committed an unfair labour practice by not appointing the
appellants and
instead appointing employees who were alleged to have
been far less experienced.
The Department of Justice had justified its
appointment of the successful appointees on the basis that it was
advancing representativity
in the department. That is the stance of
the respondent in this case.
”
2
At
2551-2,[22]
3
Thus,
in
Solidarity obo Barnard v SA Police Service
,
(2010) 31 ILJ 742 (LC)
Pretorius AJ said, at 755,[25]:
“
25.1 The provisions of the
Employment Equity Act and
an employment equity plan must be applied
in accordance with the principles of fairness and with due regard to
the affected individual’s
constitutional right to equality. It
is therefore not appropriate to apply, without more, the numerical
goals set out in an employment
equity plan. That approach is too
rigid. Due consideration must be given to the particular
circumstances of individuals potentially
adversely affected. In this
regard the need for representativity must be weighed up against the
affected individual’s rights
to equality and a fair decision
made.”
4
The
original order read in court erroneously referred to “race or
sex” and is varied accordingly.