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[2012] ZALCPE 3
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Van Dyk v Kouga Municipality (P 476/09) [2012] ZALCPE 3; [2012] 9 BLLR 952 (LC) (10 April 2012)
REPUBLIC OF SOUTH AFRICA
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA,
PORT ELIZABETH
JUDGMENT
CASE
NO: P 476/09
In the matter between:
VAN DYK, JOHAN
Applicant
And
KOUGA MUNICIPALITY
Respondent
Heard
:
14 March 2012
Delivered
:
10 April 2012
Summary:
(Unfair discrimination – race/sex- failure to
appoint – Employment Equity applied to short-listing but not to
interview
ratings – unfair discrimination in appointment not
proven)
JUDGMENT
LAGRANGE, J
Introduction
The applicant claims that he was unfairly discriminated against on
grounds of his race or sex when he was not appointed to the
post of
a platoon officer in the fire department of the respondent, the
Kouga municipality in 2009.
Material facts emerging from the evidence
The applicant is a white male who worked in the capacity of a
firefighter and subsequently a platoon officer in the Uitenhage
Fire
Department from 1989 to 2003. He held the latter position for nearly
6 years before he resigned in 2003. In 2009 the post
of platoon
officer in the fire department of the first respondent, Kouga
municipality, fell vacant again and he applied for it.
Because he
was no longer employed by the municipality at the time he was an
external candidate.
The post was previously advertised internally but no appointment was
made. It was then advertised twice externally. No appointment
was
again made the first time the post was advertised externally. The
applicant says he was advised by the human resource manager,
Mr
Faulkner that if he applied for the job the municipality would have
to appoint him as he was the only person with the necessary
qualifications. He was naturally confident that he would get the
job.
However, when he attended the interviews he found two other
candidates had been short-listed for interviews apart from him. One
of these candidates was Ms A Rossouw, a coloured woman who was then
employed by the respondent in the fire department as a senior
fireman. One of the requirements for the job listed in the
advertisement was a graduate certificate issued by the South African
Fire Services Institute. Of all the candidates short-listed, only
the applicant had this qualification when the interviews took
place.
The interviews were conducted by a panel of three persons, namely
the Manager of Protection Services, Mr S Baartman, the manager
of
legal services-, Mr S Fadi, and the Station Officer: Fire services,
Mr D Barnard. Each panellist rated the three candidates
according to
their answers to a predetermined set of questions. At the end of the
interviews the respective aggregate scores
of each candidate were as
follows:
J Van Dyk - 86%
A Rossouw – 88 %
H Mintoor – 74 %
The minutes of the discussion by the panel, which took place after
the interviews, record that both Baartman and Barnard expressed
the
view that the candidate to be appointed should be able to start the
work from the time of the appointment. Fadi responding
to these
statements said that in terms of section 20 (3) of the Employment
Equity Act the candidates to be appointed would have
to get training
and a reasonable time must be given for them to acquire the
necessary skills. The minutes confirm that it was
agreed that the
candidate with the highest score should be recommended for the post
and the union observers who attended the
interviews apparently
concurred with this recommendation, even though their opinion was
not deliberative. As the appointment
was made on the basis of the
recommendation of the candidate with the highest interview score,
Rossouw was appointed. It appears
that Barnard was unhappy with the
recommendation and his disappointment was minuted.
The applicant was also dismayed by the outcome. In his view, neither
of the other two applicants for the post should have been
short-listed in the first place because they did not have one of the
important listed qualifications for the post, namely the
SAESI
Graduate Certificate. Had Rossouw not been interviewed he was
certain to have got the appointment. He also contested that
she did
not have the same amount of experience he had. On this basis, the
applicant felt that, objectively speaking, he was the
best candidate
and ought to have been appointed.
In identifying why he had failed and Rossouw had succeeded, the
applicant concluded that either his race or sex, or both, had
been a
decisive factor counting against him. This, he contended amounted to
unfair discrimination in terms of the Employment
Equity Act 55 of
1998 (‘the EEA’). He also argued that the only person
with the necessary knowledge to evaluate the
candidates properly was
Barnard. Neither Baartman nor Fadi was qualified to assess
candidates as they did not have any fire service
training or
qualifications. Moreover, Barnard had the experience as Fire Station
Officer and had worked with both himself and
Rossouw so he was best
able to evaluate them.
At this juncture it is useful to provide a breakdown of the
panellists’ aggregate scoring of the interviewees, viz:
Panellists
Baartman
Barnard
Fadi
Total
Candidates
Rossouw
52
49
54
155
Van Dyk
48
55
48
151
Mintoor
48
43
44
135
A few observations on the contents of the table can be made.Barnard
gave Rossouw a rating equivalent to nearly 90 % of his rating
of Van
Dyk. Fadi, by contrast, gave Van Dyk a rating equivalent to 89 % of
Rossouw’s score whereas Baartman gave Van Dyk
nearly 93 % of
Rossouw’s score. In relation to the scoring it should also be
mentioned that the applicant conceded under
cross-examination, that
there were instances where Barnard had awarded Rossouw more points
for her response to a question than
he had awarded to be applicant.
Likewise, Baartman had not always awarded higher points to Rossouw
relative to the applicant.
Quite apart from the short-listing of candidates, the applicant
believed that he was also unfairly discriminated against because
Baartman had told him during a chance encounter the previous year in
December that as long as he (Baartman) was the executive
manager of
the Protection Services Department of the respondent, he would not
appoint a white person in the post. On that occasion,
the applicant
had asked Baartman about the post because he had heard that the
previous incumbent had resigned in September or
October 2008, and he
wanted to find out if a replacement had been found. Since Baartman
was also the chairperson of the interview
panel, the applicant was
convinced that he had deliberately underrated him relative to
Rossouw and that he had improperly influenced
the scoring of the
rest of the panel consisting of Fadi and Barnard.
Baartman admitted that it was possible he had met the applicant, as
they encountered each other fairly regularly, but denied
that he
would ever have made such a statement, as a senior official of the
respondent. Under cross-examination, Van Dyk further
claimed that
Baartman had spoken strongly on the question of Barnard being in
charge of the fire department. According to the
applicant Baartman
had said that if he had had his way he would not have had a white
person in charge of the department. However,
the applicant could not
dispute that Barnard had been appointed notwithstanding this alleged
statement by Baartman, and furthermore
that Baartman had recommended
Barnard for the post. The respondent challenged the applicant’s
credibility because this
important allegation was only made under
cross-examination. Certainly, it seems strange he would not have
mentioned it earlier
in his evidence because it was clearly relevant
to demonstrate racial bias on Baartman’s part.
Evaluation
Obviously, the applicant is correct that if the other two candidates
had not been short-listed, in all probability he would have
been
appointed. The respondent’s explanation for short-listing the
other two candidates was that in terms of clause 4.4
of its
Recruitment Selection and Retention Policy of June 2008, the
provisions of section 20 (3) of the Employment Equity Act
55 of 1998
(‘the EEA’) should be taken into account when the
recruitment and selection process is undertaken. Section
20 (3) of
the EEA states:
“
20(3) For purposes of this Act, a person
may be suitably qualified for a job as a result of any one of, or any
combination of that
person's-
(a) formal qualifications;
(b) prior learning;
(c) relevant experience; or
(d) capacity to acquire, within a reasonable time, the ability to
do thejob.”
Accordingly, the respondent’s explanation for short listing
Rossouw was that even though she did not hold the graduate
certificate qualification required by the post it was believed that
she had the capacity to acquire the ability to do the job
within a
reasonable time. According to the evidence of Baartman, Rossouw has
obtained the graduate certificate since her appointment.
Although the respondent relied on employment equity considerations
in drawing up a short-list of candidates, it maintains that
when it
came to the assessment of the short-listed candidates by the
interview panel, the recommendation was made purely on the
basis of
the overall score achieved by the three candidates. Hence, Rossouw
was recommended for appointment not because of affirmative
action
considerations but because she was found to be the best candidate by
the panel from amongst the short-listed candidates.
The applicant
queried the short-listing of Rossouw on the basis of her potential
to be able to do the job at the time of the
interviews. He reasoned
that since she had been working in the fire department for several
years without obtaining the certificate
qualification, there was no
reason to suppose at the time of the short-listing that she would do
so within a reasonable time
if she was appointed.
However, an implication of following the provisions of section 20
(3)(b),(c) and (d) of the EEA, was that the selectors compiling
the
short-list only needed to be satisfied that the candidates had the
capacity to acquire the ability to do the job, which does
not
necessarily mean attaining a formal qualification. In a case where
the post in question, by definition, requires a candidate
to have a
particular qualification, then the employer’s reliance on the
provisions of section 20(b)-(d) to short-list a
candidate would
probably not be possible, for example, in the case of filling of a
doctor's post. However, in this instance,
although the qualification
was listed as one of the requirements of the post, I was not
referred to any legal requirements stating
that a person may only be
appointed to a platoon officer’s post if they already have the
graduate certificate qualification.
The applicant argued that because Barnard was the only person
qualified to assess the candidates’ skills and capability,
his
scoring should have been accepted. However, it will probably happen
more often than not that an interview panel will not
consist only of
specialists in the relevant field of expertise. It cannot be
expected that every interview outcome will only
be determined by
persons who have the same or greater level of specialist knowledge
and expertise required of the candidate.
It may be advisable that a
specialist’s knowledge would be given more weight particularly
in relation to the minimum competencies
a candidate must
demonstrate, but the views of non-experts on an interview panel are
not irrelevant. Appropriate expertise is
vitally important, but
other factors such as interpersonal and communication abilities may
also play a roll in selecting the
most appropriate candidate. If
Barnard’s scoring of Rossouw is considered, it is clear that
despite her lack of a graduate
certificate, he rated her highly
relative to Van Dyk. On the face of it, it cannot be said that
Barnard thought she could not
do the job.
If the deviation in the scoring between the candidates was much more
pronounced and if the pattern of scoring on individual questions
was
more uniform it might be possible to infer some bias in operation,
but it cannot be said on the scores obtained in this case
that
racial bias is self evident, or that the pattern is so clear that a
good explanation would be required to dispel the appearance
of bias.
I certainly cannot be confident that the applicant has established a
prima facie case of differential treatment based
on race or sex.
In so far as the applicant tendered evidence of the improper motives
of Baartman, I am unable to say he tendered sufficient evidence
to
persuade me that his version was more probably true than Baartman’s.
Moreover, his belated reference to Baartman’s
alleged comments
about Barnard raises a doubt about the authenticity of his evidence
about Baartman’s alleged utterances.
It is true that Rossouw would not have been appointed if she had not
been short-listed. It is also true that, at the time of
the
interviews, the applicant was the best qualified candidate. However,
Rossouw’s short-listing was done on the basis
that she had the
capacity to acquire the minimum qualification, and in the interviews
even Barnard clearly did not regard her
as unsuitable. The reason
for her short-listing in terms of the criteria under section 20
(3)(b),(c) and (d) of the EEA was legitimate,
in the absence of any
legal pre-requisite that she had to have the graduation certificate
to perform the platoon officer’s
job.
In the circumstances, I am not satisfied that the applicant has
succeeded in establishing a prima facie case of unfair
discrimination
based on race or sex arising from the respondent
failing to employ him as a platoon officer and appointing Rossouw
instead.
On the issue of costs, I accept that the applicant did not act
frivolously in referring this matter, and even though there is
no
employment relationship between him and the respondent, I do not
believe he should pay the respondent’s costs.
Order
The applicant’s claim of unfair discrimination arising out of
the respondent’s failure to appoint him as a platoon
officer
in the fire department of the Kouga Municipality 2009 is dismissed.
No order is made as to costs.
_______________________
R Lagrange, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: TD Potgieter of TD Potgieter Attorneys.
FIRST RESPONDENT: M Grobler instructed by Van der Walt Attorneys.