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[2013] ZALCPE 25
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Singh v MEC: Eastern Cape Department of Agriculture and Another (P 288/10) [2013] ZALCPE 25 (12 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 288/10
DATE:
12 DECEMBER 2013
In
the matter between:
ADHIP
SINGH
............................................................................................
Applicant
And
MEC:
EASTERN CAPE DEPARTMENT
OF
AGRICULTURE
...................................................................
First
Respondent
MS SM
MZANTSI
..................................................................
Second
Respondent
Heard: 13
March 2013
Delivered: 12
December 2013
Summary: The
employer’s failure to show valid reason for not appointing the
best candidate constitutes unfair discrimination.
Discrimination
in terms of
section 6
of the
Employment Equity Act 55 of 1998
.
JUDGMENT
LALLIE J
[1] The
applicant was employed by the first respondent as a Manager: Asset
Management on 1 April 2007. In July 2008, the first respondent
set in
motion the process of recruitment for the post of Senior Manager:
Asset Management and Senior Manager Account Services.
The applicant
applied for the position of Senior Manager: Asset Management. He was
interviewed and subjected to competency assessment
during September
and October 2008. On 1 November 2008, Mr Mbokoto (Mbokoto) was
appointed to the position of Senior Manager Account
Services. After
reading a letter from the Head of Department congratulating Mr Booi
(Boor), Ms Mbangi (Mbangi) and Mbokoto on their
appointment to senior
positions, the applicant made enquiries about the outcome of his
application. He was eventually informed
that although he had been
recommended by the interview panel as the best candidate, the MEC
appointed the second respondent Ms
Mzantsi (Mzantsi), the second best
candidate in an attempt to meet employment equity targets. Mzantsi
resumed her duties on 1 April
2009 as Senior Manager: Asset
Management. In these proceedings, the applicant is challenging his
non-appointment to the position
of Senior Manager: Asset Management
(the disputed position) on grounds of unfair discrimination based on
gender.
Was
the applicant discriminated against unfairly?
[2]
Unfair discrimination at the workplace is prohibited by
section 6
(1)
of the Employment equity Act 55 of 1998 (the EEA) which provides as
follows:
‘
Prohibition
of unfair discrimination.-(1) 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,
language and birth.’
[3] It
is common cause that the applicant’s discrimination claim is
based on gender in in that he was the best candidate but
the first
respondent preferred a female candidate. The applicant sought to rely
on a specified ground of discrimination. He has,
therefore,
established discrimination and it is presumed that the discrimination
is unfair. The first respondent had the onus
of justifying the
discrimination: It sought to rely on section (2) (a) of the EEA which
provides that taking affirmative action
measures consistent with the
purpose of the EEA is not unfair discrimination. In Gordon v
Department of Health: Kwazulu Natal,
the court made it clear that to
justify the failure to appoint a candidate who complied with
stipulated requirements, it must
be shown that the non-appointment
was fair.
[4] It
was not in dispute that the finance branch of the first respondent
required an equal number of male and female senior managers.
The
first respondent’s witness, Ms Shitlhelali could not assist in
proving that it was justified on the basis of the EEA
to discriminate
against the applicant because she joined the Eastern Cape Department
of Agriculture (the Department) in March 2009.
The decision
recommending the applicant to the position was signed by the HOD on
13 January 2009. The MEC’s approval is unsigned
and undated. Ms
Shitlhelali was unable to shed the light on the equity plans on which
the MEC’s decision was based. She could
not tell whether the
decision was taken by the MEC. Her evidence did not assist in proving
the Department’s defence.
[5] Mr
Mandean joined the Department in 1 February 2009. His position is
similar to Ms Shithlelali as he could give no admissible
evidence on
the employment equity plans used as the basis not to appoint the
applicant to the disputed position. Similarly, he
could not testify
to the veracity of the allegation that the decision not to appoint
the applicant was taken by the MEC. He had
no knowledge of the
procedure followed in appointing Booi, Mbokoto and Mbangi to Senior
Management positions as he had not joined
the Department when they
were appointed.
[6] Ms
Mhatu (Mhatu) who was the General Manager Corporate Service and
responsible for the implementation of gender equality at
the
Department at the time of the applicant’s non-appointment
attempted to justify the Department’s choice. She signed
the
document recommending the applicant’s appointment to the
disputed position. She wrote a memorandum dated 18 December
2008 to
the CFO reminding her of the Department’s duty to reach 50/50
in terms of men and women at Senior Management Level
by end of March
2009. She further pointed out that the branch had two females and
three males, namely, Mbokoto, Msizi and Booi
and intimated that the
next appointment should be that of a female to reach the expected
50/50. She was, however, unable to explain
the full departmental
equity employment plan for the period 2008/9 – 2010/11 as she
had not obtained the explanatory notes
to the document. She conceded
that Mbokoto’s appointment increased males in senior management
in the Department while Mzantsi’s
appointment helped the branch
achieve 50/50 and increased the number of females in the province.
She testified that the equity
documents used by the MEC to appoint
Mzantsi did not form part of the first respondent’s bundle.
They were neither tendered
as evidence nor discovered notwithstanding
requests by the applicant. As the documents the MEC relied upon in
purportedly taking
the decision not to appoint the applicant were not
tendered as evidence, the first respondent has not succeeded in the
proving
his defence that the applicant’s discrimination was
based on the application of its employment equity plan.
[7]
Mhatu conceded that the minute presented to the MEC recommending the
applicant’s appointment was misleading in that there
were in
fact three female and two male senior managers in the branch and not
three males and two females as reflected in the minute,
on 29
December 2008 when the recommendation was made. The applicant’s
evidence that employment equity targets were not considered
when Booi
was appointed to the senior managerial position which had been held
by Mbokoto without formalities having been followed
was unrefuted.
Mhatu conceded that if that was the case the applicant’s
non-appointment for employment equity reasons was
unfair.
[8] Mr
Grobler for the applicant made it very clear early in the proceedings
that the document purportedly signed by the MEC appointing
Mzantsi
constituted hearsay evidence in the absence of the MEC’s oral
evidence. He made this submission persistently. The
MEC did not
testify. The document in which the MEC purportedly appointed Ms
Mzantsi is neither signed nor dated. None of the witnesses
who
testified led evidence to the effect that they were present when the
MEC made the recommendation. Ms Laher for the first respondent
argued
that the applicant should have challenged the MEC’s conduct in
review proceedings and that nothing turned on his failure
to sign the
document or testify in these proceedings. I do not agree. A party
that bears the onus to prove the fairness of discrimination
is
required to do so by leading admissible evidence.
[9] In
Mgobhozi v Naidoo NO and Others, it was held that notwithstanding
the Labour Court’s obligation to deal with fairness
in the
context of fair dismissal that does not mean that it has a general
equitable jurisdiction with regard to the admissibility
of evidence.
Admissibility of evidence is, therefore, governed by principles and
legislation. In determining the admissibility
of hearsay evidence,
the court relied on section 3 of the Law of Evidence Amendment Act 45
of 1998 (the Evidence Act) which provides
as follows:
‘
Hearsay
evidence.- (1) subject to the provisions of any other law, hearsay
evidence shall not be admitted as evidence at criminal
or civil
proceedings, unless-
(a) Each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) The
person upon whose credibility the probative value of such evidence
depends, himself testified at such proceedings ;or
(c) The
court, having regard to-
(I) the
nature of the proceedings;
(ii) the
nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v) the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence might entail;
and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be admitted
in the interest of justice.
(4) For
purpose of this section-
“
Heasay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence;
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including prosecution.’
[10] The
document appointing Mzantsi falls outside the realm of dismissible
hearsay evidence as no valid reason was given for the
MEC’s
failure to testify. In the absence of the MEC’s evidence, the
first respondent proffered no reason for not appointing
the applicant
when he was the best candidate and recommended for the appointment.
The applicant was, therefore, unfairly discriminated
against on the
basis of gender.
[11] The
applicant sought to be appointed to the position of Senior Manager:
Asset Management with effect from 1 November 2008,
the date when the
parallel post of Senior Manager Account Services was filled.
[12] In
response to the applicant’s request for information regarding
the post of Senior Manager: Asset Management, he had
applied for,
Mandean provided the applicant with four documents. The first is the
memorandum allegedly approved by the MEC for
Mzantsi’s
appointment as Senior Manager: Asset Management. For reason already
given I have concluded that no evidence was
led to prove that the
appointment was approved by the MEC. The second is the memorandum in
which Mhatu reminds the CFO of the Department’s
goal to reach
the 50/50 target in terms of men and women in Senior Management by
end of March 2009. She intimated that the CFO’s
branch had two
females and three males. She further stated that the following
appointment must be of a female person in order to
reach 50/50 target
as expected. Mhatu conceded that the memorandum is not factually
correct as on the date, it was written the
branch had three female
and two male Senior Managers. The appointment of a male, the
applicant in particular would have assisted
the first respondent
achieve the 50/50 target in the branch. The third is a memorandum in
which Mhatu impresses upon the CFO the
need to achieve gender
equality targets by March 2009. Mhatu recommended the applicant
instead of Mzantsi. In her capacity as the
General Manager: Corporate
Services she only paid lip service to gender equality in the
Department when the opportunity to recommend
a competent female
candidate presented itself. She only mentioned that ideally a female
should have been appointed. The recommendation
made by the first
respondent’s officials is valid and binding. The fourth
document is a memorandum in which the Director
General reminds all
HODs of the Executive Council decision that before employment offers
are made to prospective SMS candidates,
information regarding the
impact of the possible appointment on the equity profile of the
Department is forwarded to his office
for validation, with the view
to achieve the 50/50 provincial target set for 2009. No evidence was
led to the effect that the Director
General was informed before
Mbokoto and Booi were appointed of the impact of their appointments
on equity targets. Mandean concluded
the letter of 16 April 2009 by
informing the applicant that his office was in the process of
locating the documentation relating
to the withdrawal of the disputed
post previously as well as the documents relating to the
non-appointment to the disputed post
on a four months’ contract
as advertised previously. The applicant was never favoured with the
information.
[13]
Under cross-examination, Mhatu testified that she was aware that the
disputed post was advertised in 2007 and 2008 but had
no idea why it
was re-advertised. The first respondent had no valid reason for not
appointing the applicant to the disputed post
on 1 November 2008 at
the time Mbokoto was appointed to the post of Senior Manager:
Corporate Account Services as the positions
were advertised at the
same time. The applicant and Mbokoto were interviewed and assessed
for competence at the same time. Fairness,
therefore, requires that
they should have been appointed at the same time in the absence of
evidence justifying the delay in filling
the disputed position.
[14] I
could find no reason for costs not to follow the result.
[15] In
the premises, the following order is made
15.1 The
appointment of Ms Mzantsi to the post of Senior Manager: Asset
Management instead of the applicant constituted unfair
discrimination.
15.2 The
first respondent is ordered to appoint the applicant to a position
similar to the position of Senior Manager: Asset Management
with
effect from 1 November 2008.
15.3 The
first respondent is ordered to pay the applicant the difference
between what he would have earned had he been appointed
to the post
of Senior Manager: Asset Management on 1 November 2008 and what he
actually earned for the period 1 November 2008 to
the date of his
appointment to the position similar to the position of Senior
Manager: Asset Management.
15.4 The
first respondent is ordered to pay the applicant’s costs.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Advocate Grobler
Instructed
by: Drake Flemmer and Orsmond (E.L) Inc
For
the First Respondent: Advocate Laher
Instructed
by: The State Attorney