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[2013] ZALCPE 12
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Sali v National Commissioner of the South African Police Services and Others (P246/10) [2013] ZALCPE 12 (21 May 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case No:P246/10
In the matter between:-
DALUXOLO NICHOLAS SALI
..............................................................................
Applicant
and
NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES
......................................................
1
ST
Respondent
PROVINCIAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES
.....................................................
2
ND
Respondent
MINISTER OF SAFETY AND SECURITY
..................................................
3
RD
Respondent
Heard: 17-19 September 2012
Delivered: 21 May 2013
Summary: An employee claiming to
have been discriminated against needs to prove the existence of an
employment policy or practice
discriminating against him or her. He
or she may not seek to rely on age limitation he or she co-determined
in proving discrimination
based on age.
______________________________________________________________________
JUDGMENT
LALLIE J
:
Introduction
The applicant is a police reservist
since 2006. He referred a discrimination dispute against the
Respondents to the CCMA in terms
of
Section 10
of the
Employment
Equity Act, 55 of 1998
the CEEA. After it was not resolved at
conciliation, he referred it to this Court for adjudication.
The applicant’s dispute is
based on age discrimination. Because of a number of
misunderstandings which came to the fore
during the course of the
trial, the factual background to this dispute is necessary. The
applicant’s case was that in September
2009, he was informed
of vacancies for permanent positions at the South African Police
Service (SAPS) and applied for categories
A2 and D2 as instructed.
He was required to be between 41 and 45 years old. In October 2009,
he was informed by Inspector Pyne
in an interview that his
application had been successful and was required to subject himself
to medical examination and other
required tests. It was on being
successful in those tests that he would be given a contract of
employment. He passed all the
tests, but never received a contract
of employment. The outcome of his enquiry about his contract of
employment was that he had
not been appointed as he was over age. No
response was received on his application for condonation of his age.
It is for the
above reasons that the applicant claimed to have been
unfairly discriminated against on the grounds of age by the
respondents.
The respondents denied discriminating
against the applicant. Their defence was that at the time the
applicant applied to be a
member of the SAPS he had to fulfill two
requirements namely, he should not have been older than 40 years and
he needed 3 years’
experience as a reservist. The respondents
submitted that he fulfilled neither and was therefore not eligible
for appointment.
The applicant conceded that he did not fulfill the
age requirement. He denied ever being informed of the requirement of
being
a reservist for 3 years. He, however, argued that at the time
of his enlistment he fulfilled the experience requirement.
The respondents’ evidence which
is either common cause or not contested, is that on 2 and 23
February 2009, police reservists
marched on the ANC head quarters
demanding to be integrated in the SAPS. A reservists’ summit,
attended by 500 representatives
of reservists from all 9 provinces
was held on 23 March 2009 in Midrand. All these effort culminated in
the formation of a task
team which looked into the appointment of
reservists. Amongst the proposals of the task team was the amendment
of the regulations
governing the appointment of members of SAPS by
increasing the maximum required age from 30 to 40 years and
introducing a requirement
that reservists needed at least 3 years’
experience to qualify for appointment as members of SAPS.
The proposals regarding the
enlistment criteria for the recruitment of reservists as permanent
members of SAPS were approved by
the National Commissioner of SAPS
on 29 May 2009.
It is common cause that the applicant
was born on 10 November 1967. He became a police reservist on 10
August 2006. He submitted
his application form for enlistment as a
permanent member of SAPS on 21 July 2009. He was therefore 41 years
8 months and had
been a reservist for 2 years 11 months when he
submitted his application form.
In terms of the pre-trial minute, the
parties agreed that I am required to decide firstly whether the
applicant met the requirements
for appointment as a permanent member
of SAPS. Secondly, whether the respondents discriminated against the
applicant on the basis
of age and, if so, whether such
discrimination was unfair and lastly, whether the applicant is
entitled to relief.
Discrimination at the workplace is
prohibited by
section 6(1)
of the EEA which provides as follows:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.’
The applicant, as the employee had
the onus of proving the existence of a policy or practice which
discriminated against him.
The respondents, as the employer had to
prove that the discrimination, if it existed, was fair.
I now turn my attention to the first
issue I need to determine in terms of the pre-trial minute: whether
the applicant met the
requirements for appointment as a permanent
member of SAPS. The starting point is the source of the
requirements. The respondents’
unchallenged evidence is that
as a result of recommendations of a task team with representatives
of reservists from all 9 provinces,
the National Commissioner of
SAPS exercised his discretion in terms of
Regulation 11(2)
of the
Regulations promulgated by Government Notice No R203 of 14 February
1964 as amended by Government Notice R519 of 27 December
2009 and
amend the age of reservists to be enlisted as permanent members of
SAPS from between 18 and 30 years to between 18 and
40 years. In
addition the reservists were required to have 3 years’
experience as reservists.
The applicant denied having been
informed of these requirements. Brigadier Le Roux testified that she
addressed reservists in
Port Elizabeth at a sports field in July
2009 and told them all the requirements for enlistment. She also
confirmed the history
of the regulations governing the enlistment
requirements of reservists. Brigadier Govender corroborated
Brigadier Le Roux’s
evidence regarding the history of the
requirements.
An assessment of probabilities on
this issue points to the conclusion that the applicant was aware of
the requirements and their
history. His version that he changed
television channels when the news of the reservists march was aired
is improbable. He could
not avoid watching fellow employees who were
fighting his own cause of becoming a member of SAPS. He was in the
privacy of his
home out of sight of the officers who had warned him
against associating himself with the march. When applying for
enlistment,
the applicant stated that he was 40 years old when he
was in fact 41 years 8 months. The only plausible inference that can
be
drawn from his conduct of reducing his age is that he wanted to
fall within the required age. I therefore have to reject the
applicant’s submission that there were only rumours of the
minimum requirements when he was signing the preliminary application
forms.
It was Brigadier Le Roux’s
evidence that the applicant had to meet the 3 years’
experience as a reservist on the date
of the application. She
explained that they told reservists that they had to have 3 years’
experience in order to apply.
It was her further evidence that one
gets enlisted after the whole process is finalized.
Brigadier Govender also testified
that the Applicant’s application was rejected because on the
date he completed the application
form he did not meet both
requirements.
The applicant presented an elaborate
version on not being informed of the 3 years’ experience
requirement. He sought to
rely on statements made to him by SAPS
officials, which suggested that the requirement did not exist. He
submitted that he got
to know of the requirement for the first time
when his attorney brought it to his attention, having read it from
the respondents’
answering affidavit. The test to determine
the existence of the requirement is objective. The requirement
either existed or it
did not exist. The respondents’ evidence
which the applicant did not gainsay is that a task team in which he
was represented
recommended the requirements for enlistment of
reservists which included the two requirements referred to in these
proceedings.
The recommendations were made regulations. The only
reason a 40 year old reservist could qualify for enlistment as a
member of
SAPS was by operation of the regulation. The applicant
cannot cherry pick requirements which are binding on him. A
requirement
that a reservist had to have 3 years’ experience
to qualify to be enlisted as a permanent member of SAPS existed. It
is
a legal requirement which had to be fulfilled by all reservists
who sought to be enlisted.
The applicant was deeply hurt by the
tests he was made to undergo, statements made by SAPS officials and
not being informed on
time that he did not fulfill the 3 years’
experience requirement. There was a duty on the respondents to
inform the applicant
as soon as possible that he did not meet the
requirements and not raise his hopes. Hurting the applicant’s
feelings by
the tardy manner in which his application was handled
does not alter the legal requirements.
I have already accepted Brigadier Le
Roux’s version that she told the reservists about the
experience requirement as her
version was more probable than the
applicant’s. She was also a credible witness who stuck to her
version on this part of
her evidence even under cross-examination.
The same cannot be said about the applicant whose version was
obviously untrue.
Having made the finding that the
experience requirement existed I will consider whether the applicant
fulfilled it. It is common
cause that on 21 July 2009, when the
applicant completed the preliminary application form, he did not
fulfill the experience
requirement. On 14 September 2009, when he
was interviewed, he had the required 3 years’ experience. The
first question
of the interview report form reads as follows:
‘
The
Reservist conform/does not conform to the National Commissioner’s
instruction and criteria as per letter 3/3/8/191 dated
2009-06-10 and
5/3/1 (Dv Comm J K Phahlane) dated 2009-08-27 – paragraph 5’.
The letter of 10 June 2009 deals with
the criteria, including age and experience as a reservist. As the
question is phrased in the
present tense I will give it its literal
meaning that the applicant was required to have 3 years’
experience on the date
of the interview, 14 September 2009 and he had
it. I therefore find that the applicant fulfilled the requirement of
3 years’
experience as a reservist.
It is common cause that the applicant
did not meet the age requirement as he was 41 years and 10 months on
the date of his interview.
The answer to the first issue I had to
determine in terms of the pre-trial minute is that the applicant did
not meet the requirements
set by SAPS for appointment as its
permanent member as he had exceeded the required age. It is
appropriate to bring this issue
to its logical conclusion by
considering the legal implications of my finding.
The consequences
of an appointment in contravention of the regulatory framework was
expressed as follows in
Khanyile
v Minister of Education and Culture, KwaZulu-Natal and Another
:
1
‘
The
purported appointment of the applicant to a senior management service
post in the public service was flawed in at least three
major
aspects…I therefore hold that the purported appointment by the
first respondent was not a valid appointment in terms
of the relevant
sections of the Public Service Act read with the regulations thereto.
It is therefore of no force and effect.’
The second issue I need to determine
in terms of the pre-trial minute is whether the applicant was
discriminated against. The
respondents denied having discriminated
against the applicant and explained that the reason for his
non-appointment was based
on the law. The applicant was over the 40
year age limit stipulated in the regulation.
The applicant submitted that his
non-appointment was direct discrimination based on age as envisaged
in section 6(1) of the EEA.
The respondents argued that the
applicant failed to prove that they contravened section 6 of the EEA
as the age limitation in
question was determined not by its policy
or practice, but by a regulation.
Section 6(1) of the EEA prohibits
direct or indirect unfair discrimination based on age against an
employee in any employment
policy or practice. Employment policy or
practice is defined in section 1 of the EEA to include:
‘
(
a
)
recruitment procedures, advertising and selection criteria;
(
b
)
appointmentsand the appointment process;
(
c
)
job classification and grading;
(
d
)
remuneration,employment benefits and terms and conditions of
employment;
(
e
)
job assignments;
(
f
)
the working environment and facilities;
(
g
)
training and development;
(
h
)
performanceevaluation systems;
(i)
promotion;
(
j
)
transfer;
(
k
)
demotion;
(
l
)
disciplinary measures other than dismissal; and
(
m
)
dismissal.’
Legislation is excluded from the
definition. Although the list of what constitutes employment policy
or practice is not closed,
exclusion of legislation is deliberate.
The applicant, whether he based his case on employment policy or
practice, had a duty to
state all the grounds he relied upon in his
case. I have already accepted the respondents’ evidence that
the age restriction
was introduced by a regulation. It is noteworthy
that the regulation is the culmination of discussions on employment
of reservists
in which the applicant, through his representatives
consented to the age restriction which forms part of the contents of
the regulation.
He cannot claim that the age restriction he
co-determined discriminates against him.
I have considered the respondents’
argument that the regulation is a collective agreement. I disagree
as it falls outside
the realm of the definition of a collective
agreement in section 213 of the LRA. The applicant was therefore not
discriminated
against on the basis of age.
On the question whether the applicant
is entitled to the relief he is seeking, it is clear that the
applicant did not make out
a case for such relief. The applicant had
to meet two requirements, namely the age and the experience
requirements. It is common
cause that he did not meet the age
requirement as he was over 40 years old when he applied to be
enlisted as a permanent member
of SAPS. He met the second
requirement. In terms of the regulation he was required to meet both
requirements. As he did not comply
with the requirements, he has no
basis to claim to be appointed to the position he applied for.
The applicant
cannot require that he be granted relief by being appointed in
breach of the regulation. An appointment in breach
of regulatory
framework is null and void.
2
The respondents
cannot be restrained from enforcing the age restriction determined
by a regulation as no one may renounce a right
contrary to law.
3
Before the
respondents can exercise the power to enlist permanent members of
SAPS, facts must first exist, in an objective sense,
that such power
may be exercised. Absent the facts, the purported exercise of power
will be declared invalid.
4
For these reasons I find that the
respondents did not discriminate against the applicant by not
enlisting him as a permanent member
of SAPS.
The respondents sought a cost order
against the applicant. Section 162 requires this court to consider
the law and fairness in
determining the issue of costs. The
officials of SAPS played a leading role in the referral of the
dispute by the applicant by
their failure to provide him, timeously,
with the correct information. To that end even the applicant
testified that had he been
aware of the true facts he would not have
challenged his non-appointment. Granting a cost order against him
will, in the circumstances,
not be fair.
Order.
In the circumstances the following
order is made:
29.1The applicant’s claim is
dismissed.
______________
Lallie, J
Judge of the Labour Court of South
Africa
Appearances
:
For the Applicant: Mrs. Van Staden of
Justice Centre
For the Respondents: Advocate Bloem SC
andAdvocate Richards
Instructed by: State Attorney
1
(2006)
27 ILJ 769 (N) at 778B - C
2
See:
Khanyile (supra
).
3
See:
South African Co-Operative Citrus Exchange Ltd v Director-General
Trade and Industry
1997 (3) SA 237
(SCA).
4
See:
Democratic Alliance v President of the RSA and Others,
2013
(1) SA 248
CC