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[2012] ZALCCT 37
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Gebhardt v Education Labour Relation Council and Others (C 820/08) [2012] ZALCCT 37; [2013] 1 BLLR 28 (LC); (2013) 34 ILJ 1183 (LC) (7 September 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
case
no: C 820/08
In the matter between:
C J GEBHARDT
Applicant
and
EDUCATION LABOUR RELATIONS COUNCIL
First Respondent
ADV LUVUYO BONO
Second Respondent
THE WESTERN CAPE EDUCATION DEPARTMENT
Third Respondent
Heard
:
29 August 2012
Delivered
:
7 September 2012
Summary:
Review – ULP – LRA s 186(2)(a) --
promotion -- application of different employment equity criteria.
JUDGMENT
STEENKAMP J
Introduction
This review application brings into stark focus the difficulties
that employers face when confronted with the application of
employment equity targets where the applicants for promotion are
members of different designated groups.
The applicant wishes to have an arbitration award by the second
respondent (“the arbitrator”) reviewed and set aside.
The arbitrator found that the applicant had failed to prove that she
had been subjected to an unfair labour practice involving
promotion,
as contemplated by section 186(2)(a) of the Labour Relations Act.
1
Background facts
The applicant, Ms CJ Gebhardt, started working for the Western Cape
Education Department (the third respondent) at Paarl College
in
1992. She was appointed Faculty Head at Boland College in 2003. In
that same year, she suffered heavy bouts of vertigo and
realised
that she was losing her hearing. In 2006 she was diagnosed as
suffering from Mèniére’s disease.
2
Her hearing deteriorated to such an extent that she was required to
wear hearing aids in both ears.
The applicant informed the human resources manager of Boland
College, Mr Hough, of her hearing loss in a telefaxed survey form
in
which she indicated that she is disabled. Under the heading, “nature
of disability” (
aard van gestremdheid)
she indicated
“gehoorgestremd”. She also indicated that she had
suffered total loss of hearing by 2006. Apart from
this formal
notification, she also mentioned informally to the CEO and
Vice-rector of the College that she had to wear hearing
aids in both
ears.
In April 2006 the applicant applied for a promotional post at Boland
College, being that of Senior Education Specialist: Post
Level 3.
She had acted in that position for three years. She mentioned her
hearing disability on her application form.
The interviewing panel interviewed three shortlisted candidates and
indicated their preference for the applicant as the recommended
candidate. It is common cause that she attracted the highest score
based on a list of criteria. Nevertheless, the WCED appointed
the
candidate with the second highest score, Ms CF van Voore. It is
unfortunately relevant for the purposes of this judgment
to mention
that, under apartheid-era race classification, Ms van Voore would
have been classified “coloured” and
the applicant would
have been classified “white”.
The applicant referred an unfair labour practice dispute involving
promotion to the first respondent (the Bargaining Council).
The
arbitrator found that she had not discharged the onus to show that
the WCED had committed an unfair labour practice.
The arbitration award
Apart from the applicant’s evidence, the arbitrator heard
evidence from WCED’s employment equity coordinator, Mr
Allan
John Meyer; and from the College’s human resources manager, Mr
Marius Hough.
Meyer testified, in short, that the WCED had to comply with
employment equity targets that were agreed to in terms of the
Employment
Equity Act.
3
At the time of the appointment, there was an “under-representation”
of “coloured females” in the so-called
FETC sector
(under which the College fell). Van Voore was appointed because she
fell into this category; because she was the
second best candidate;
and because she was eligible for the post. Although he acknowledged
that the applicant had indicated in
her application form that she
had a disability, the WCED had not taken this into account as it
could not be verified on the PERSAL
system (the payroll and
personnel administration system used by WCED). No-one contacted the
applicant in an effort to ask her
to verify her status as a disabled
person, and thus part of a designated group in terms of section 1 of
the EEA. (Of course,
the applicant is also part of a “designated
group” because she is a woman; but in terms of the WCED’s
employment
equity targets, white women were “over-represented”
in the FETC category and therefore this fact did not assist her).
Hough, the HR manager, was the chairperson of the interview panel.
He testified that there was a big difference in the scores
the
interview panel had allocated to the applicant and to Van Voore,
respectively; i.e. the applicant had received a much higher
score.
In a subsequent meeting, he advised the WCED that the applicant had
a disability.
The arbitrator formed the view that all three shortlisted candidates
were eligible
4
for the post and that the non-appointment of the applicant, who
received the highest score, was not necessarily unfair. He found
that the appointment was fair in the light of the WCED’s
employment equity policies. With regard to the applicant’s
disability, he found that the onus was on the applicant to provide
proof of her disability:
“
Surely
the person alleging the disability carries more responsibility of
ensuring that the employer is notified of her alleged disability.
It
is uncontested that the [WCED] has its own process of verifying an
alleged disability before it even loads such disability on
persal and
clearly in this case such process was not undertaken as there seems
not to have been proper notification of the [WCED]
of the employee’s
disability.”
The arbitrator concluded that the applicant had failed to prove that
the WCED had committed an unfair labour practice.
Grounds of review
Having raised number of grounds of review in her founding affidavit,
the applicant focused on two grounds of review in oral argument:
The arbitrator failed to apply his mind to the evidence before him.
In particular, he failed to take into consideration that
Hough, the
HR manager, had informed WCED’s Meyer that the applicant had
a disability and that Meyer undertook to investigate
it.
The arbitrator committed an error of law and thus misunderstood the
nature of his discretion, in that he wrongly assumed that
the
applicant bore the onus of proving that she was a member of a
designated group, whereas the EEA places this duty on the
employer.
Evaluation / Analysis
First ground of review: Hough’s testimony
It must be borne in mind that WCED, and not the applicant, called
Hough (the HR manager) to testify on its behalf. There was
no
suggestion from either side or from the arbitrator that Hough’s
testimony was in any way tainted, improbable or not
credible.
It is common cause that the applicant reported her disability to
Hough before she applied for promotion. She also indicated her
disability on the very application form for the promotional post.
After the interviews had been conducted and the interview panel had
recommended the applicant as the best candidate for the job,
Hough
met Meyer, the WCED’s employment equity coordinator, together
with other representatives of the WCED to discuss the
recommendations in the light of employment equity targets. He told
Meyer of the applicant’s disability. The WCED representatives
said that they would investigate and revert to the College. They
never did.
Hough made no reference in his evidence to the question whether the
applicant’s disability was recorded on PERSAL or not.
In its
answering affidavit in this review application, the WCED has
referred to a policy document with regard to the employment
of
people with disabilities in the WCED. That document did not serve
before the arbitrator and cannot now be introduced into
evidence.
But in any event, it does not assist the WCED. It provides that:
“
Should
the disability not be self-evident, it may be required that the
employee disclose sufficient information to confirm the disability
or
the accommodation needs.”
Unfortunately this clause is drafted in the passive voice. It does
not make it clear who is required to “disclose sufficient
information to confirm the disability”. But where the employee
has alleged a disability, and the employer is not satisfied,
surely
it must be read to mean that the employer must then require the
employee to disclose the information. In this case, the
WCED never
ask the applicant to disclose further information to back up her
claim in the job application that she was disabled.
Given these facts, it is clear from the arbitration award that the
arbitrator failed to apply his mind to the evidence that the
HR
manager, Hough, informed the employment equity coordinator, Meyer,
of the applicant’s disability. He failed altogether
to
consider the question whether the WCED should have given the
applicant the opportunity to provide further evidence in
circumstances
where it was not satisfied that she was indeed
disabled, as she had stated on her application form and as the HR
manager informed
the employment equity coordinator.
This was a material omission, as it is common cause – and
conceded by the WCED’s own witnesses – that the
applicant’s disability, had it been considered, would have
made a significant difference to the outcome of the application.
The arbitrator clearly failed to apply his mind to this crucial
issue that arose in evidence. This led to an irrational conclusion.
It is not only irrational, but it is so unreasonable that no other
reasonable arbitrator could have come to the same conclusion.
Second ground of review: the duty to inform and to prove
disability
The arbitrator assumed that the applicant had to not only inform her
employer that she was disabled, but that she had to provide
proof
thereof.
One only needs to consider the position of other designated groups
to conclude that this assumption is irrational. The Population
Registration Act
5
was repealed decades ago. The citizens of a democratic South Africa
are no longer classified according to race. How, then, would
a
person who is classified as “coloured” and who is
therefore given preference for appointment – such as Ms
van
Voore -- provide proof of that categorisation?
The EEA
6
provides that:
“
Every
designated employer must, in order to achieve employment equity,
implement affirmative action measures for people from designated
groups in terms of this Act.”
The duty is clearly on the
employer
to effectively implement
affirmative action measures for people from designated groups, such
as people with disabilities. Section
19 of the EEA further provides
that the employer must collect information on conduct and analysis
of its workforce was in each
occupational category and level in
order to determine the degree of underrepresentation of people from
designated groups in various
occupational categories and levels in
its workforce.
The Code of Good Practice: Preparation, Implementation and
Monitoring of Employment Equity Plans published in terms of the
Employment Equity Act further prescribes
7
:
“
The
first step in conducting an analysis of the workforce profile is to
establish which employees are members of designated groups.
The
information should be obtained from employees themselves… If
existing records are utilised for this purpose, e.g. employee
should
have the opportunity to verify or request changes to this
information.”
In the current case, the WCED made no effort to give the applicant
an opportunity to verify the information that she provided
that she
is disabled.
From the aforegoing, it is clear that the duty is on the employer to
gather – and when necessary concern – the disability
of
a person who alleges that she is a member of that designated group.
By assuming the contrary, the arbitrator misconstrued
the entire
legal basis of his finding. On this ground as well, the award falls
to be reviewed and set aside.
Remit or substitute?
This is not a matter where the court is in a position to substitute
its own finding for that of the arbitrator. Another arbitrator
will
have to consider the unfair labour practice dispute afresh, taking
into account the evidence of the applicant’s disability;
the
failure of the WCED to consider it; and the correct principles
emanating from the EEA. That arbitrator will then have to
consider
whether an unfair labour practice has been committed; and if so,
whether the applicant is entitled to promotion, or
whether her
application for promotion should be considered afresh, taking into
account and weighing up her membership of a designated
group.
Both parties submitted that costs should follow the result. I agree.
Order
I order as follows:
The award of the second respondent dated 9 September 2008 is
reviewed and set aside.
The unfair labour practice dispute is referred back to the first
respondent to be considered afresh by an arbitrator other
than the
second respondent.
The third respondent is ordered to pay the applicant’s costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
F Rautenbach
Instructed by Murray,
Fourie & Le Roux (Worcester).
THIRD RESPONDENT:
L Abrahams
Instructed by the State
Attorney (Cape Town).
1
Act
66 of 1995 (“the LRA”).
2
A
disease of the
membraneous
labyrinth of
the ear associated with tinnitus, progressive deafness, and
intermittent vertigo.
3
Act
55 of 1998 (“the EEA”).
4
The
arbitrator said that the candidates were “legible” and
that Van Voore was not “illegible”. I presume
that he
meant “eligible” and “ineligible”.
5
Act
30 of 1950.
6
Section
13.
7
Item
7.3.2 (a).