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[2013] ZALCPE 26
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Dlabantu v Department of Justice and Constitutional Development (P539/10) [2013] ZALCPE 26 (12 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
Case
No: P 539/10
DATE:12
DECEMBER 2013
In
the matter between:
VUYANI
ARMSTRONG
DLABANTU
.....................................................
APPLICANT
And
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.............................................
RESPONDENT
Heard:
12 November 2012
Delivered: 12
December 2013
Summary: In
a claim for discrimination based on a listed ground the applicant is
required to prove a link between differentiation
and the listed
ground of discrimination.
Discrimination
for participating in trade union activities-Section 6 of the
Employment Equity Act 55 of 1998
.
JUDGMENT
LALLIE,
J
Introduction
[1]
The Applicant approached this Court for relief on the basis that he
was discriminated against by the respondent as envisaged
in section 9
of the Constitution of the Republic of South Africa of 1996 (the
Constitution). He claimed that he was not appointed
as a Court Clerk
because of his trade union activities which included exposing and
challenging corruption and nepotism in the Eastern
Cape Offices of
the Respondent. His claim is challenged by the respondent on the
grounds that the applicant’s non appointment
had nothing to do
with discrimination but resulted from his failure to meet the
requirements for the position of a Court Clerk.
Factual
Background
[2]
The applicant was employed by the respondent on different fixed term
contracts as an Administration Clerk at the Port Elizabeth
Magistrates’ Court from 13 February 2004. In 2008, the
respondent advertised 63 Administration Clerks’ posts for the
Port Elizabeth Magistrates’ Court. These posts were different
from the one held by the applicant in that they were not of
fixed
term duration. One of the crucial duties the clerks were required to
perform was to operate the Digital Court Recording System
(DCRS) to
ensure the generation of clear and concise court records. The
applicant was trained and assessed on the operation of
the DCRS. He
was on a fixed term contract at the time of recruitment for the 63
posts. He received a letter dated 19 March 2007
in which the
respondent informed him of the termination of his temporary
employment in that his contract ending on 30 March 2007
would not be
renewed. The reason furnished was that he did not meet the
requirements for the assessment by Rino Personnel which
would have
qualified him for appointment as a Court Clerk.
Relevant
law against discrimination
[3]
Section 23 (2) (b) of the Constitution guarantees every worker
the right to participate in union activities. A right which
is
guaranteed as follows in section 5 of the Labour Relations Act 66 of
1995 (the LRA):
(1) ‘No
person may discriminate against an employee for exercising any right
conferred by this Act.
(2) Without
limiting the general protection conferred by section (1) no person
may do, or threaten to do, any of the following
(c)
Prejudice an employee or a person seeking employment because of past,
present or anticipated-
(i) …
(ii) …
(iii)
Participating in the lawful activities of a trade union, federation
of trade unions or workplace forum’.
[4] Section
6 (1) of the Employment Equity Act 55 of 1998 (the EEA) prohibits
direct or indirect discrimination against employees
in any employment
policy or practice. Section 11 of the EEA provides that whenever
unfair discrimination is alleged the employer
against whom the
allegation is made must established its fairness. In Lewis v Madia 24
Ltd it was held that the essential elements
to prove contravention
of section 6 (1) of the EEA are:
‘
there
must be discrimination differential treatment based on a listed or
analogous ground;
The
discrimination must be sourced in an employment policy or practice;
It
must be against an employee; and
It
must be unfair’.
The
court included different treatment of an employee because of trade
union victimization in illustrating difference in treatment.
As the
applicant alleged that the reason for his non-appointment was his
participation in union activities his claim is based on
direct
discrimination. Non- appointment falls within the purview of
recruitment of employment policies and practices. He also alleged
that he was given less training time than the other candidates. The
onus of proving the existence of discrimination was on the
applicant.
[5]
The discrimination the applicant seeks to rely on constitutes a
listed ground of discrimination as it is listed or specified
in the
LRA. The applicant needs to establish a connection between the
differentiation and his trade union activities, to be successful
in
proving discrimination. In this regard see Woolworth (Pty) Ltd v
Whitehead . In an effort to prove discrimination the applicant
testified that there were many allegations of nepotism at the Port
Elizabeth Magistrates’ Court which he was vocal in challenging.
As employees they signed a petition and brought the scurge of
nepotism to the attention of both the Minister and Director General
of the Respondent. At some stage a delegation led by Messrs Mtombeni
and Banjwa from the respondent’s East London regional
office
arrived in Port Elizabeth in 2005 to attend to the problem. In their
discussion they could not agree on whether the commission
of enquiry
to probe the allegations of nepotism should be conducted by internal
or external officials.
[6]
A week after the meeting, the applicant received a letter from Mr
Mqalo, the director legal resources which required him to
give reason
for disciplinary action not to be taken against him on 3 charges
which included putting the respondent’s name
into disrepute and
holding unauthorised meetings during office hours. He furnished his
reply within two days but he never heard
from Mr Mqalo until the
termination of his services on 31 March 2007. In 2005, in a meeting
between shop stewards and the Court
Manager in which he was late, the
applicant was labelled an instigator before his arrival.
[7]
In his evidence of the events closer to the date he was informed of
his non- appointment, the applicant stated that he did not
attend the
full DCRS training scheduled for temporary clerks between the end of
February and beginning of March 2007 because he
was performing his
court duties. The training was conducted on a Friday and between
09H00 and 16h00 and the following Monday from
9h00 to 13h00. They
were assessed at 14h00 by a recruitment agent known as Rino
Personnel. He later in March 2007 received the
letter informing him
of his non-appointment because he did not meet the requirements which
would qualify him for appointment as
a Court Clerk. Pursuant to the
applicant receiving the letter he referred a dispute to the General
Public Service Sectorial Bargaining
Council. Before the dispute was
arbitrated the applicant was informed on 16 September 2008 that
officials from the regional office
were conducting an investigation
about him. The parties settled the dispute in terms of which the
applicant was to be re-trained
and re-assessed. Training was
scheduled to start at 09H00. It instead started at 09H05 and ended at
12H55. The applicant expressed
the view that he was treated
differently from his colleagues who were trained over a day and a
half. The respondent also failed
to consider his competence and three
years’ experience. He sought retrospective appointment with
effect 1 August 2008.
[8]
The respondent submitted that the applicant failed to prove that he
had been discriminated against. It sought to rely on the
following
test in Harksen v Lane NO and Others . Firstly, does the
differentiation amount to ‘discrimination’? if it
is on a
specified ground, then the discrimination will have been established.
If it is not on a specified ground, then whether
or not there is
discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which
have the potential to
impair the fundamental human dignity of person as human beings or to
affect them adversely in a comparably
serious manner.
[9]
Although Harksen (supra) is based on section 22 of the Interim
Constitution it is of relevance as the said section is identical
to
section 9 of the current Constitution. I have deliberately included
the applicant’s evidence in detail to determine whether
it
proves a link between the differentiation and his trade union
activities. The respondent is a government department and acts
through its officials. The applicant did not disclose the names of
the officials through which the respondent discriminated against
him.
He made reference to Mr Mqalo who in 2005 asked him in a letter to
give reasons for disciplinary action not to be taken against
him. No
disciplinary action was taken against him. He also testified that the
Court Manager called him an instigator in his absence.
He led no
evidence to link the comment to his non-appointment. He also
mentioned that he was told on 16 September 2008 that officials
from
the regional office were investigating him. He provided no link
between the investigation, his union activities and his
non-appointment.
Mqalo testified that the reason for the applicant’s
non-appointment was that he could not perform the key function of a
Court
Clerk which is the keeping of court records. He did not acquire
the required points on both chances he was given and he therefore
did
not qualify. The applicant did not challenge the truthfulness of
Mqalo’s evidence regarding the reason for his non-appointment.
He did not put his discrimination version to Mqalo but put it to him
that he was not given the same training time as his colleagues.
The
respondent’s reason for the applicant’s non-appointment
was uncontroverted. The applicant did not, either in his
evidence in
chief or in cross-examining Mqalo link him to his trade union
activities.
[10]
In his evidence in chief, the applicant testified that he challenged
nepotism in the course of his union activities as a member
of
delegations. He was one of a number of union members. Even at the
meeting he claims to have been referred to as an instigator
in his
absence, an allegation which constitutes inadmissible hearsay
evidence, he was with other shop stewards who had arrived
at the
meeting earlier. Other than stating that he was vocal, he gave no
reasons for the respondent to target him of all the other
trade union
members he was challenging the irregularities and nepotism with.
[11]
The applicant testified that he joined the initial DCRS training late
as he was busy with his court duties. The parties agreed
that he be
given a second opportunity of being trained and assessed. It was the
respondent’s version that the duration of
the training should
have been three hours. The version was not challenged by the
applicant who complained that it was short by
ten minutes. He further
added that it was shorter than the training received by his
colleagues. He however, led no evidence to
link the duration of his
training to his union activities. Malunga was the co-ordinator of the
DCRS and was present at the applicant’s
second training. He
testified that three hours were sufficient for the training. The
applicant did not put his discrimination version
to Malunga.
[12]
The applicant failed to lead evidence linking the duration of his
training and his union activities to his non-appointment.
He has
therefore not proved that he was discriminated against by the
respondent as a result of his union activities.
[13]
In the circumstances the applicant’s claim is dismissed
Lallie,
J
Judge
of the Labour Court of South Africa
APPEARANCES
FOR
THE APPLICANT: In Person
FOR
THE RESPONDENT: Advocate Gqamana
INSTRUCTED
BY: The State Attorney
[1]
(2010) 31 ILJ 2416 (LC)
at
para 35.
[1]
(2000)
21
ILJ
571 (LAC)
.
[1]
[1997] ZACC 12
;
1998 (1) SA 300(CC)
at
325 A