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[2013] ZALCD 5
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Munsamy v Minister of Safety and Security and Another (D253/03) [2013] ZALCD 5; [2013] 7 BLLR 695 (LC); (2013) 34 ILJ 2900 (LC) (3 April 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D253-03
In the matter between:
CAPTAIN M MUNSAMY
...........................................................................................
Applicant
and
THE MINISTER OF SAFETY
AND SECURITY
...........................................
First
Respondent
THE SOUTH AFRICAN
POLICE SERVICES
.......................................
Second
Respondent
Heard: 25 to 28 June
2012
Receipt of written
closing submissions: January 2013
Delivered: 3April 2013
Summary: In the
absence of a rational coherent employment equity plan permitting
such, an employer may not prefer one group of designated
employees
over another who are supposedly over-represented. Discrimination
based on race unfair.Requirements for rational employment
equity
plan.
JUDGMENT
WHITCHER, AJ
Introduction
In early 2000, 195
vacant promotional posts were made available in KwaZulu-Natal at the
level of Superintendent to bring the total
number to 479. The
applicantapplied for posts459, 463 and 493.
The applicant was
recommended for appointment to post 459 but was not appointed on the
basis that Indian males were over-represented
and Africans were
under-represented at the level of Superintendent. The second
respondent [“the respondent”] pleaded
that the applicant
lacked relevant experiencefor post 463 and that the successful
candidate, Ms Drotsky, a white female, was
appointed on the basis of
‘representivity’ and that the candidate with the highest
points, B Gumbi, was appointed
to post 493.
The issuesare whether
the respondent’s decision which was based on affirmative
action was in line with a defensible employment
equity plan, and, as
such, constituted fair discrimination against the applicant and
whether the respondent had a fair reason
for not appointing the
applicant to post 493.
General background
facts
On 27 June 1997, in a
collective agreement on employment equity, the respondent and
organised labour, SAPU, POPCRU, PSA and NPSU,
agreed that the
respondent shall strive to attain a minimum of50% Black people and
30% women at management levels by the year
2000. In order to meet
theobjectives of the policy, the respondent was to use the
population distribution based on the 1996 National
Population Census
by the year 2005. The parties agreed that an employment equity plan
would be drafted in accordance with the
LRA
1
and
that ‘a mandated committee shall be constituted by the
National Negotiation Forum’ for this purpose.
In early 2000,
the promotion process in
question began. On 13 March 2000,
the
national office directed that the criteria for selection must
include ‘representivity’ and that numerical targets
of
70% black, 30% white and 50% women must be achieved as far as
possible, taking into consideration the composition of the
provinces.
A provincial selection
panel in KwaZulu-Natal considered the applications and made
recommendations to a national selection panel.
Each candidate, in
addition to being scored in relation to his or her own apparent
expertise and experience,
was
awarded a score for representivity. Indian males and white males
were given 5.5, whilst African males were given a score of
8.
The applicant was
shortlisted for posts 459 and 493, but not for post 463. The
provincial panel recommended that he be appointed
to post 459.The
province’s recommendationsand a summary of theirnumerical
achievements were transmitted to the national
office on 27 June
2000.
Their recommendations
achieved numerical targets of 73,85%black candidates and 26,15%
white candidates in respect of the 195 posts.
This likewise achieved
the 50%/50% ratio set out in the 1997 agreement and the 70%/30%
ratio set out in the March 2000 directive.
Therecommendations
werenot approved by the national panel. The panel, which included
two representatives each from SAPU andPOPCRU,decided
on 13 July 2000
that since the respondent had submitted an Interim Employment Equity
plan to the Department of Labour on 1 June
2000, the provinces must
review their recommendationsin accordance with the planand strive to
achieve targets of 70% Blacks (African,
Coloured and Indians), 30%
Whites and 30% females and to improve representivity amongst black
males and females and white females.
The demographics provided by
the 1996 Census were to be used as guidelines in this regard.
The directive to KZN had
an attachmentheaded ‘Numerical Goals – KwaZulu-Natal
Demographics’.The document was
authored by the respondent’s
Employment Equity Division. The goals were extrapolated utilising
the 1996 National Statistics
and applying such statistics to the
respondent’s apparently existing workforce.
The manner in which such
demographics were purportedly applied was as follows:
The number of
promotional posts (195) was initially divided, in terms of race, by
the 70% designated / 30% non-designated ratio.
Thereafter, the national
statistics purportedly derived from the 1996 census were applied to
the 70% of the posts which were benchmarked
for black people, and
within that each of the racial groups were allotted the number of
posts which accorded with the national
demographics thereby
achieving a total number of posts made available per racial group.
The numerical goals
reflected that Africans were to be awarded 192 posts and the Indian
male incumbency was to be reduced to a
total of 17 and the female
incumbency, 7.
In consequence of the
directive from the national panel, the KZN provincial panel set
about realigning its initial recommendations
to the figures
contained in the attached ‘Numerical Goals –
KwaZulu-Natal Demographics’ document.
Its decision to
recommend the applicant to post 459 was substituted with a
recommendation that one Captain Zakwe be promoted in
his stead. Ms
Drotsky, a white female, who, like the applicant, had not been
shortlisted for post 463, was recommended for the
post in the
review. Zakwe and Drotsky were appointed to the posts.
The applicant testified
that he had at the time over 25 years of service and had performed
some of the most important functions
attached to post 459, including
the inspections of 25 stations, which Zakwe had not performed. In
response to a respondent witness’s
suggestion, he said he
should not be forced to relocate anywhere else in the country in
order to obtain a promotion. He was born
and bred in KwaZulu –
Natal and a move outside the province would necessitate him leaving
his home, his extended family
and having to incur the expense of
accommodation in another province.
According to the
submitted Interim Employment Equity Plan and Report–
The respondent had consulted all
organised labour, employees who are not represented by unions and
employees from designated and
non-designated groups butthe extent of
the consultations had been very limited.
2
Each province had their own plans
because it was impractical to develop a single plan that will make
provision for the exclusive
circumstances in the provinces.
The executing authority and
management of the respondent had set the numeric targets set out in
the plan.
Overall targets for the duration of
the plan in contrast to targets for recruitment for the duration of
the plan were set.
For ‘overall targets’ at
management level, targets were set at 50% designated/50%
non-designated for the year 2000;
60%/40% for the year 2001. For
other levels, the targets were 50%/50% for the year 2000; 70%/30%
for the year 2001.
For ‘recruitment at all levels
for the duration of the plan’ the targets were 70% designated
/ 30% non-designated
and 70% male / 30% female.
In a separate section, the plan set
out the overall number of whites [male and female], Indians [male
and female], Coloureds [male
and female] and Africans [male and
female] it intended to have in the whole of the respondent by the
end of December 2004.
It is noted here that
the plan was submitted on 1 June 2000 to the Department of Labour,
but on 29 May 2000 the Provincial Commissioner
of SAPS:
KwaZulu-Natal sent a document headed ‘Employment Equity Plan:
KwaZulu-Natal’ to the head office of the respondent.
According
to the document, as at 29 May 2000, the respondent in KZN had not
conducted a workplace audit, prepared draft numerical
targets, set
up a consultative forum or consulted with any role players on these
issues. They hoped to complete these processes
by the end of 2000.
The law
Employers are obliged to
make the workplace equitably representative and may use
discriminatory affirmative action measures to
do so.
3
An
employer may, however, not prefer one group of designated employees
over another group of designated employees who are supposedly
over-represented in the absence of proper proof of such
representativeness and a valid employment equity plan which permits
the action of the employer. The LAC recently affirmed this rule in
SAPS v
Solidarity on behalf of Barnard
4
when
it held that the failure by the SAPS to appoint a recommended white
female candidate did not constitute unfair discrimination
where
white females were over-represented in the level of the advertised
post andthe failure to appoint was in line with a rational,
coherent
employment equity plan intended to redress inequitable
representation in the workplace.
5
The issue is what
constitutes a rational coherent employment equity plan and action in
line with such a plan.
The answer is to be
found in the provisions of the
Employment Equity Act, 1998
and the
Code gazetted to regulate the preparation and implementation of
employment equity plans, as set out below. The Act and
Code were in
operation at the time of the promotion process in question.
In terms of section 15
(3) of the Act, legitimate affirmative action measures include
preferential treatment and numerical goals,
but exclude quotas. The
concept of preferential treatment and numerical goals to be achieved
within a certain period of time
differs quite significantly from the
concept of quotas. The imposition of a strict quota is a rigid
measure requiring a certain
fixed proportion or percentage to be
included whereas preferential treatment and goals is more flexible
allowing the achievement
of objectives over a period of time.
Subject to section 42,
nothing in section 15 of the Act requires a designated employer to
establish an absolute barrier to the
prospective or continued
employment or advancement of people who are not from the designated
groups or who are from a designated
group that happens to be
over-represented in the relevant occupational level.
In terms of section 16
of the Act, the employer is obliged to take reasonable steps to
consult with all designated and non-designated
groups on the
preparation and implementation of an employment equity plan. The
parties invited to consult, and thus the consultative
forum/s,
should reflect the
interests of all employees. The Guideline speaks of a forum being
broadly representative of allinterests.
6
For instance, if the
employer chooses to consult with or invites only certain unions and
the membership of these unions, collectively,
is mainly made up of
one particular racial group, it logically follows that there has not
been proper consultation. Similarly
if the employer fails to
meaningfully attempt to consult members of non-designated groups on
the preparation and implementation
of an employment equity plan,
therehas been no proper compliance with the Act and Guidelines.
The employer is only
obliged to provide a proper opportunity for consultation. It cannot
be held against the employer if any particular
interest group failed
to take up the opportunity of consultation when invited to do so.
Guidelines of the Code provide that when
a representative union or
body refuses or fails to take part in the consultation process, the
employer must record the circumstances
in writing.
The consultations need
not result in agreement on the issue for consultation and it remains
the employer’s responsibility
in terms of the Act to proceed
with implementing employment equity.
According to guideline
8.4.2, in developing the numerical goals, the following factors,
inter alia, must be taken into account-
the degree of
under-representation of employees from the designated groups in the
different occupational levels;
present and planned
vacancies;
the demographic profile
of the national
and
regional economically active population;
the pool of suitably
qualified people from designated groups from which the employer may
reasonably be expected to promote or
appoint employees; and
the number of present
and planned vacancies that exist in the various categories and
levels, and the employer’s labour turn-over.
These factors are also
taken into account when the department of labour is determining
whether the employer is properly implementing
equity.
7
According to section 17,
and, implicit in sections 17, 20 and 42 of the Act and guidelines
8.4.2 of the Code, the issues for consultation
must include the
workforce profile analysis, including the relevant information and
demographics and the extent of under-representation
of employees
from the designated groups in the different occupational categories
and levels. It must also address what sort of
affirmative action
measures are to be applied, including demographic guidelines and
goals and whether, in these respects, national
and/or regional
demographics will be used, time periods and what constitutes
reasonable progress over the duration of the plan.
Based on the above
provisions, where an employer used affirmative action measures to
prefer one designated group over another
who were supposedly
over-represented, the employer must prove the following toestablish
that its conduct was in line with a defensible
employment equity
plan:(i) that there was an over-representation of the discriminated
against group and an under-representation
of the preferred group
in the level of the post in question: this requires the conduct of a
proper workplace profile audit;
(ii) that the measure is
sufficiently coherent and not open to arbitrary application or
abuse; (iii) that the measure is permitted
by the Act; (iv) an
equity plan that permits the disputed measure, either expressly or
by clear implication; (v) that the measure
is intended to correct
inequitable representation in the workplace; and, (vi) that the
measure arose out of proper consultations,
i.e. therehad been proper
consultation on the particular measure.
Whether a court may be
called upon to adjudicate the fairness, in the wide sense of the
word, of ‘measures’, especially
where they havebeen the
subject of proper consultation and agreement between management and
labour in the consultative forum
and where the aggrieved parties
have the right to advance their interests through political and
industrial action, is debatable
but as will be seen is not an issue
that needs to be determined in this case. It is not necessary for
the resolution of this
dispute.
Analysis of the case
Measures not in line
with an employment equity plan
In the first phase of
the process, the assessment of the applicant included the
attribution of a score for ‘representativeness’.
Indian
males, as members of the designated group, were attributed the same
scores as white males, the non-designated group. The
provincial
panel was not furnished with any demographics by the national office
until 19 July 2000, some months after the initial
allocation of
points.
When canvassed with
them, not one of the respondent’s witnesses were able to point
to any equity plan which permitted such
a point system or provide
any explanation as to how such a point system was established, or
what informed the actual allocation
of specific points to the
individual race groups.This system was thus arbitrary and lacked any
rational basis.
Notwithstanding the
arbitrary and irrational allocation of points, the applicant was
recommended for promotion to post 459. He
was,
therefore,
not materially
prejudiced by the system. The absence of material prejudicedoes not
detract from a finding of unfair discriminationbecause,
while
prejudice is highly relevant, the main mischief guarded against in
the right not to be unfairly discriminated and
solatium
awarded
in unfair discrimination cases is the infringement of the right to
dignity.The central role of dignity as a substantive
test of process
in unfair discrimination is relevant. The constitutional court has
emphasised that a person’s constitutional
right to dignity is
infringed where he or she is unfairly discriminated against on the
basis of race or gender.
8
In
the circumstances,
the
use of such an arbitrarymeasure against the applicant constituted
unfair discrimination.
The main measure that
led to the de-selection of the applicant was the document headed
‘Numerical Goals – KwaZulu-Natal
Demographics’
authored by the respondent’s Employment Equity Division.
In the document, the
national populationdemographics, based on the 1996 census, were
applied to 70% of the posts which were benchmarked
for black people,
and within that, each of the designated groups were allotted the
number of posts which accorded with the national
demographics
thereby achieving a total number of posts available per racial
group.Fixed quotas for the promotion process were
essentially
established.The numerical goals reflected that Africans were to be
awarded 192 posts. As there were only 195 posts
available for
promotional purposes, this target reflects that almost 100% of the
proposed posts were to be given to African applicants.
Prior to the promotion
process, 95 Indian males occupied positions at salary level 9 –
10, whilst 11 Indian females did
likewise. In terms of the
respondent’s proposal embodied in the Numerical Goals
document, the Indian male incumbency was
theoretically to be reduced
to a total of 17 and the female incumbency, 7.
To achieve this, if the
respondent had followed the Numerical Goals document strictly, it
would have been required that no single
Indian person was to be
promoted.
The approach also,
potentially, has the result that Indian members of SAPS in
KwaZulu-Natal and Coloured members in the Northern
and Western Cape
would thereby have to undertake provincial migration in order to
either become employed or be promoted; an issue
that was raised by
the applicant.
In terms of the 70%/30%
measure, 30% of the posts remained reserved for whites, while the
partial application of national demographics,
more particularly
national population demographics, only to the designated group, led
to 3% being reserved for Indians, a designated
group.
According to the
respondent’s witnesses, the creation and application of the
numerical goals and measures described above
and used to de-select
the applicant were purportedly based on the Interim Equity Plan, the
1997 collective agreement and agreement
between management and
labour at the national panel meeting in July 2000. Moreover, the
plan was derived from proper consultation
with its employees.
The respondent’s
witnesses were unable to direct this Court to any evidence, other
than their say so and the statements
made in the plan, that the
Interim Plan had been a product of proper consultations. It is
unthinkable that no corroborating documentary
evidence would be
available to sustain such a claim.
Their claim is directly
contradicted by the letter of 29 May 2000 from the KZN province to
the national office. This letter makes
it clear that, as at the 29
May 2000, one day before the Interim Plan was submitted to the
Department of Labour, no reliable
workforce or demographic profile
of the province had been prepared or consulted on and that there had
been no consultation on
affirmative action measures and numeric
goals relevant to the province. It was only by the end of the year
2000 that the province
anticipated that these issues would have been
compiled and consulted on.
Furthermore, according
to the Interim Employment Equity Plan Report, each province was
supposed to prepare its own plan, ‘because
it was impractical
to develop a single plan that will make provision for the exclusive
circumstances in the provinces.’
In the report, the
extent of consultations is described in the form of various
percentages, mostly all below 20%, but no evidence
was led as to
what informed these figures and what they actually meant.
The 1997 collective
agreement clearly did not constitute consultation on the Interim
Equity Plan. According to the agreement,
the parties still intended
to consult on and prepare an employment equity plan in accordance
with the
Employment Equity Act.
The
agreement between
management and two representatives each from POPCRU and SAPU during
the meeting of the national panel in July
2000 to assess the
appointment recommendations from the provinces does not constitute
consultation contemplated by the Act for
the purposes of preparing
an employment equity plan.
Even if it is accepted
that the Interim Equity Plan had been the product of a proper
consultation process, the respondent was
unable to direct this Court
to any part of the plan which mentioned and entitled the respondent
to use and apply the affirmative
measures described above in the
promotion process, namely to establish quotas, to use numerical
targets based on national population
demographics in a province, to
apply demographics or national demographics in the awarding of posts
to the designated group and
to apply demographics or national
demographics in the awarding of posts to the designated group in
circumstances in which 30%
of the posts remained reserved for whites
while only approximately 3% remained reserved for Indians who are
designated as beneficiaries
in the
Employment Equity Act.
The
respondent submitted
that these imperatives are contained in the 1997 collective
agreement because it states that:
‘
In order to
meet the objectives of this document, the Service shall strive to
attain representativeness which reflects the population
distribution
based on the 1996 National Population Census,
by
the year 2005.’
The assertion is
unsustainable. This general statement in the agreement cannot be
interpreted to contain the specific measures
in question. Fairness
and the principle of legality require that such drastic measures
should be expressly and clearly stated
in an equity plan.
The agreement also
stated that the target to be achieved by 2000 was 50% Black / 50%
White people and that ‘representivity
means that all racial
groups of the South African community shall be
broadly
mirrored
in the various activities of the Service while taking into
consideration gender and disability.’
The assertion
contradicts the national panel’s directive to the provincial
panel in March 2000 to take into accountthe ‘composition
of
the provinces’ in the promotion process.
The agreement was also
not drawn up in terms of the
Employment Equity Act. The
parties
stated in the agreement that a proper equity plan was still be
prepared in accordance with the relevant law.
In any event, the
respondent put up the June 2000 plan as their Employment Equity
Plan. The national panel in their meeting of
July 2000 stated this
plan must be used in promotions.Any independent agreement at this
meeting on numerical goals and affirmative
action measures is
irrelevant. The purpose of the meeting was to assess promotion
recommendations and an agreement in this context
between two
representatives each from two of the many unions in operation at the
respondent does not amount to a consulted plan
contemplated by the
Employment Equity Act.
In
the circumstances,
the respondent has failed to prove that the discrimination against
the applicant was in line with an employment
equity plan that had
been the subject of proper consultation and that the measures relied
upon to de-select the applicant were
permitted by theemployment
equity plan relied upon.
Moreover, the
application of national demographics, only to the designated group,
in circumstances in which 30% of the posts remained
reserved for
white people while less than 3% were reserved for Indians, a
designated group, logically lacked fundamental rationality.
It would be absurd to
expect an employer to produce perfectly accurate workplace profile
audits and resultant numerical targets.
However, the extent of the
discrepancies as shown by the applicant and set out below, brings
into question the coherency and
rationality of the numerical targets
relied upon by the respondent to de-select the applicant.
The Employment Equity
report submitted by the KwaZulu-Natal province on 29 May 2000 makes
it clear that when the respondent submitted
its equity plan to the
department of labour on 1 June 2000, the province had not at that
time completed its workforce profile
and the persal system used to
calculate numeric goals was unreliable. The province stated that it
was therefore unable to set
objective and rational numeric targets.
It was only by the end of the year 2000 that KwaZulu-Natal
anticipated that it would
have compiled reliable statistics and a
demographic profile of its workforce. Also to be completed only by
the end of that year
was the determination of numeric goals and
strategies to address under-representivity as identified in the
analysis which was
still to be completed.
The respondent stated
that the numerical targets were to be based on the National
Demographics of the Economically Active Population
of South Africa
but the demographics of the general population was used. The
respondent’s testimony that the statistics
for the
economically active population was the same as the general
population is clearly incorrect, logically, and as was demonstrated
by documentary evidence of the 1996 Census handed in by the
applicant.
The document produced by
the respondent shows that in 1996, the economically active Indian
population comprised 9.2% of the population
of KwaZulu-Natal, while
the document produced by the applicant established that it was in
fact 15.29%.
There were 195 promotion
posts to be filled. 30% were to be reserved for the White population
group. 30% of 195 posts is 58.5
posts. In the numerical goals
document, a total of 63 posts were to be allocated to White people.
This represents 32% of the
available posts, being 2% in excess of
the guideline.
As per the national
demographics which were allegedly relied upon, the percentage which
ought to have been applied to each of
the designated groups was as
follows:
African – 76.7%
Coloured – 8.9%
Indian – 2.6%
These percentages,
applied to the promotional posts which remained available to the
designated groups, result in the following:
African – 101.7 posts
Coloured – 11.8 posts
Indian – 3.5 posts
As it was, the numerical
goals reflected that Africans were to be awarded 192 posts (being
131 posts to be allocated to males
(proposed 145 less the existing
14) added to 61 posts to be allocated to females (proposed 62 less
the existing 1). This represents
90 posts more than ought to have
been allowed for in terms of the National Demographics which were
allegedly applied.
As to the posts which
ought to have been allocated to the Coloured population, which ought
to have been 12 on the above calculations,
only 4 were allocated in
terms of the numerical goals.
It is not possible to
say that, but for these errors or discrepancies, the applicant would
not have been de-selected. The respondent
contended that since it
was not disputed that Indian males were in any event
over-represented at the relevant level in KZN and
furthermore that
his non-appointment to post 459 was in order to redress
under-representation of African males at the relevant
level, the
respondent did not unfairly discriminate against the applicant. In
this regard, the respondent referred to section
195 of the
Constitution which provides inter alia that public administration
must be broadly representative of the South African
people.
Clearly, proof of
over-representation and an intention to correct inequitable
representation is not the primary determinative
in cases of this
kind as established by the SCA in
Gordon
v Department of Health: KwaZulu-Natal
9
and
the test set out in paragraph [29] above. The case referred to by
the respondent,
SAPS
v Solidarity on behalf of Barnard (supra)
re-affirmed
this as well. According to the respondent’s own reading of the
case, the LAC held that the failure by the SAPS
to appoint a
recommended white female candidate did not constitute unfair
discrimination where white females were over-represented
in the
level of the advertised post andthe failure to appoint was in line
with a
rational,
coherent
employment
equity plan intended to redress inequitable representation in the
workplace.
Aside from the
fundamental inapplicability of the affirmative action measures
applied against the applicant, the applicant submitted
that the
appointment of an African male in post 493 was irrational because it
contradicted the respondent’s reason for
failing to appoint
the applicant, namely to facilitate a broadly representative
workforce at all levels of the respondent. Save
for one white male,
the station was occupied entirely by African males and females. The
applicant contended that in light of
the objective of the
respondent, there was no reason why a suitably qualified candidate,
such as the applicant who had already
been recommended for
appointment, could not have been placed in the post.
This submission goes to
the rationality of the use and application of national demographics
per se. Whether the courts may adjudicate
such a complaint is
debatable, but it is not necessary to decide this matter since this
case has been resolved on other more
fundamental grounds.
Conclusion
The application of
affirmative action measures which resulted in the applicant being
denied promotion to post 459 was not in line
with a defensible
employment equity plan and as such the conduct of the respondent
against the applicant was unfairly discriminatory.
Post 493
I accept the
respondent’s submission that the applicant failed to show that
his non-appointment to this post was unfair.
The applicant was ranked
fourth out of four candidates that were shortlisted. The successful
candidate, Gumbi, scored 64.31 and
the applicant scored 59.28. The
respondent established that, even if the discriminatory points given
for representivityis excluded
from the scoring,Gumbi’s score
remained higher than the applicants’, even if marginally so.
There can therefore be
no suggestion that Gumbi’s appointment
could be regarded as one based on race. Moreover, during
cross-examination, the
applicant disavowed any allegation that Gumbi
was not a suitable candidate.
Appropriate relief
The applicant achieved
the rank of Major on 1 May 2011. He is seeking to be remunerated the
difference between the salary he actually
earned and the salary he
would have earned had he been promoted on 1 July 2000, until 1 May
2011, which includes the difference
in bonuses payable, as set out
in the schedule he prepared. The amount in question is
R333 421.00.In additionthe applicant
seeks compensation in the
maximum amount permissible in terms of section 194(4) of the LRA on
the basis that, having been denied
a promotion in 2000,he was
prejudiced in that he was unable to apply to be promoted to any
further ranks because he was unable
to jump levels in the ranking
structure when applying for promotion.
Regarding the first part
of the relief sought, although the applicant was recommended for
appointment by the provincial panel,
the final decision fell with
head office. It is, therefore, relevant whether he would most
probably have been appointed if this
recommendation had not been
cancelled on the basis of unfair discrimination. This Court can
safely find that the applicant would
probably have been appointed
because head office would have had to have a good reason to reject
the recommendation. Since head
office did not prove that it
potentially had a good reason, outside of unfair discrimination, to
reject the recommendation, the
applicant is entitled to the relief
sought.
I find no reason to
grant the applicant compensation over and above of what he actually
lost in terms of remuneration. I have
taken into consideration that
when the unfair conduct occurred, namely in the year 2000, the
development of affirmative action
policies in terms of the Act was
relatively new and the respondent did not have the advantage of the
guiding principles which
have since been established by case law.
Order
The application of
affirmative action measures by the second respondent which resulted
in the applicant being denied promotion
to post 459 was not in line
with a defensible employment equity plan and as such the conduct of
the respondent constituted unfair
discrimination.
The second respondent is
directed to pay the amount of R333 421.00 to the applicant, Mr
Munsamy, within two months of the
delivery of this judgment.
The second respondent is
directed to pay the applicant’s costs in this suit.
__________________
Whitcher AJ
Acting Judge of the
Labour Court
APPEARANCES:
For the Applicant:
Advocate K Allen
Instructed by: Norton
Rose, Durban
For theSecond Respondent:
Advocate NH Maenetje SC
Instructed by: State
Attorneys, Durban
1
The
parties obviously meant the
Employment Equity Act.
2
The
level of consultation is described in percentage form.
3
Section
13
and
6
(2)(a) of the
Employment Equity Act, 1998
.
4
[2013]
1 BLLR 1
(LAC).
5
See
also:
Gordon v Department of Health: KwaZulu-Natal
(2008) 29
ILJ 2535 (SCA) and
IMATU v Greater Louis Trichardt Transitional
Local Council
(2000) 21 ILJ 1119 (LC).
6
Guideline
7.2.8 of the Code.
7
Section
42(1)(a).
8
">
8
President
of the Republic of SA and Another v Hugo
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC);
Harksen v Lane NO and Others
1997 (11) BCLR 1489
(CC);
National Coalition for Gays and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC).
9
Above
n 5.