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[2015] ZALCJHB 151
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Solidarity obo Labuschagne v Commissioner of the South African Revenue Services (JS732/11) [2015] ZALCJHB 151; [2015] 10 BLLR 1070 (LC) (14 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 732/11
DATE: 14 MAY 2015
Not Reportable
In the matter between:
SOLIDARITY OBO
LABUSCHAGNE
..................................................................................
Applicant
And
COMMISSIONER OF THE SOUTH AFRICAN
REVENUE
SERVICES
.........................................................................................................
Respondent
Heard: 07 October 2014
Delivered: 14 May 2015
Summary: Claim unfair discrimination. Employment Equity Act –
the requirement of the Equity Plan in applying affirmative action
measure. Employment Equity plan serves as a guideline not to be
rigidly applied.
JUDGMENT
MOLAHLEHI, J
[1]
The
applicant in this matter claims that she was discriminated against
unfairly by the respondent when the interview and selection
process
was extended and subsequently an African female appointed instead of
her as white female. She claims an order declaring
that:
i.
She
was unfairly discriminated against after the first round of
interviews on the basis of race, being a white female, whilst she
was
the most suitable candidate for the post.
ii.
The
respondent did not have an employment equity plan and in the absence
of an employment equity plan(“EE Plan”), the
application
of affirmative action was therefore irrational.
iii.
The
recruitment process followed by the respondent was not fair.
iv.
The
respondent did not take into account knowledge, skills attributes and
experience in the making the appointment, and
v.
The
interview panel was not representative in terms of race, gender and
culture.
[2]
This
matter was heard on 07, 08 and 09 October 2014. The matter was then
postponed
sine
die
with the directive that the parties should file heads of arguments.
It was also indicated in the directive that unless the Court
directed
otherwise the matter would be finalised on the basis of the heads of
arguments submitted by the parties without the need
for oral
submissions.
Background facts
[3]
It
is common cause that the applicant, Ms Labuschagne, applied for the
post of Team Leader Administrators and Payroll Transaction
Data which
was advertised internally at grade 6 occupational level in the
Centralized High Transactional Unit (CHUT), which is
a unit of the
department of human resources. The advertisement indicated that the
employment equity of the respondent would be
considered as part of
the recruitment process.
[4]
It
is also common cause that a number of employees applied for the post,
consisting of a number of white and black females and males.
There
were six candidates who were shortlisted and interviewed, consisting
of African females, a coloured female and two white
females.
[5]
It
would seem that the outcome of the interviews was that the two white
female candidates, the applicant and Ms Fereira, a white
female with
disabilities, were to be recommended for appointment. It is apparent
that the interviewing panel never formerly made
a recommendation in
this regard.
[6]
It
is also apparent that consideration of the appointment of one the
above two candidates was never made because Ms Visser, head
of the
CHUT caused the recruitment process to be extended. The extension of
the process resulted in, two African females, Ms Madidimole
and Ms
Moore applying for the post.
[7]
The
interview panel scored Ms Madidimole the highest and accordingly
recommended her for appointment. The recommendation of the
interviewing panel was accepted, resulting in the appointment of Ms
Madidimole.
The applicant’s case
[8]
As
would appear from the above the essence of the applicant's case is
that she was discriminated against simply because of her race.
She
testified that after the interviews, she was informed by Ms. Visser
that she was the “best candidate” and would
have been
appointed in the first round of the interviews but for the fact that
the respondent needed the position in question to
be filled by an
African female.
The
Respondent’s case
[9]
The
respondent contended that it did not unfairly discriminate against
the applicant and in support of that version it presented
the
testimony of two witnesses, Ms Kabele and Mrs Van Tonder (nee
Senekal).
[10]
Ms
Kalebe testified that the interviews were competency-based and that
the candidates were presented with similar scenario-based
questions.
She also stated that after the interviews she met with Ms Visser and
informed her of the recommendation that was to
come from the
interview panel which was that two candidates being recommended for
appointment would be the applicant and Ms Fereira.
[11]
At
the time the dispute arose the demographic representation in the
human resources division of the respondent, according to Ms
Kalebe
was 51.4% white females, 19.9% African females and 7.3 % coloured
females.
[12]
In
responding to what she was told by Ms Kalebe, Ms Visser indicated
that there was a need to extend the recruitment process for
the
purpose of identifying a
black
female. The recruitment and selection process was consequently
extended and that was done in consultation with Mr Baloyi of
human
resources department.
[13]
In
extending the recruitment process the respondent relied on the
recruitment policy under clause 2.18 of the policy which provides:
“
b)
All applicants have to adhere to the closing date for application as
specified in the advertisement,
unless
a waiver has been granted by the Line Manager and the relevant
General Manager
.”
(my underlining)
[14]
During
cross-examination Ms Kalebe disputed that the appointment of Ms
Madidimole was irregular. She contended that the applicant
would not
have been appointed because there was another candidate, Ms Fereira
who was also recommended in the first round of the
interviews.
[15]
The
second witness of the respondent was Ms van Tonder, who at the time
of the dispute was the employment equity manager and also
the
secretary of the employment equity committee (EE committee). She was
also responsible for preparation of the EE plan.
[16]
Ms
Van Tonder, testified that the EE policy of the respondent required
senior managers, like Ms Visser, to ensure that the demography
of the
workforce was representative across all occupational levels. She also
stated that the EE plan served to guide the managers
on the issue
employment equity.
[17]
According
to Ms Van Tonder the EE plan which expired on 31 March 2010, was
extended by the EE committee as a measure to ensure compliance
with
the Employment Equity Act (the EEA).
[18]
In
terms of the EE report submitted to the department of labour by the
respondent during January 2011, the respondent’s demographics
for grade 6 professional levels, were according to Mrs Van Tonder, as
follows; 380 African females which is 20% and 386 white females
which
is 18.28%.
[19]
In
relation to the appointment of Ms Madidimole, Mrs Van Tonder
testified that that appointment addressed the under representation
of
black females at the specialist and management levels. She also
testified that the plan which the applicant relied on, in contending
that she was discriminated against, was the divisional plan which was
not applicable at the time the dispute arose.
[20]
In
response to what was put to her during cross-examination about
representivity of African females in the organization Ms Van Tonder
stated that the representation in the CHUT was “lily white’’
and that it was the responsibility of Ms Visser
to ensure that that
issue was addressed.
[21]
In
relation to the powers of the EE committee to extend the EE plan, Mrs
Van Tonder testified during cross examination that the
extension was
by consensus and that the Commissioner was part of that because there
was a representative seating in that committee
representing him.
The law
[22]
It
is clear in terms of section 13 and 6 (2) of the EEA that a
designated employer is obliged to make the workplace equitably
representative
of the designated groupings in the workplace and may
seek to achieve that objective by use of discriminatory affirmative
action
measures. Section 13 of the EEA reads as follows:
“
(1)
Every designated employer must, in order to achieve employment
equity, implement affirmative action measures for people from
designated groups in terms of this Act.
(2) A designated employer must -
(a)
consult with its employees as required by section
16;
(b)
conduct an analysis as required by section
19
.
(c)
prepare an employment equity plan as required by section
20; and
(d)
report to the Director-General on progress made in implementing its
employment equity plan, as required by
section
21
.
[23]
And
section 6 [2] of the EEA reads as follows:
“
(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, culture, language and birth.
(2) It is not unfair
discrimination to -
(a) take affirmative action
measures consistent with the purpose of this Act; or
(b) distinguish, exclude or
prefer any person on the basis of an inherent requirement of a job.
(3)
Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1).”
[24]
In
developing and implementing the EE plan the employer has to ensure
that it has in place policies or practice which are rationally
connected to the objectives sought to be achieved. The objectives
must be aligned to the constitutional values and ideals envisaged
in
section 9 of the Constitution which reads as follows:
1.
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
2.
Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and
other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be
taken.
3.
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
4.
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
5.
Discrimination
on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination
is fair.
[25]
In
terms of the EEA an employer can develop an EEA plan that is
operational for either one or five years. The employer is further
required in terms of section 16 of the EEA to consult with all the
designated and non-designated employees in the development and
implementation of the EE plan.
Evaluation
[26]
The
two key issues raised by the applicant in this matter are that; she
was discriminated against when the first round of interviews
was
halted and then extended. The second point is that the respondent was
not justified in applying the affirmative action measures
to deprive
her of the appointment to the position in question in the absence of
an EE plan.
[27]
The
other point raised by the applicant is that the recruitment process
followed by the respondent was irregular and unfair. This
is based on
the fact that the recruitment process was extended after the
completion of the first round of the interviews.
[28]
It
seems to me apposite to deal first with the two other issues raised
by the applicant in her pleadings. I will revert to the above
issues
later in this judgment.
[29]
The
first issue in this regard is that the respondent in appointing Ms
Madidimole did not take into account knowledge and skills,
and
experience into account. The case of the respondent on the other hand
is that the appointment of MS Madidimole, was made on
merit and the
fact that she was an African female was an added bonus but not a
decisive consideration in the overall decision to
appoint her.
[30]
During
cross-examination the applicant readily conceded that she did not
question Ms Madidimole's qualification for the post and
also that she
was the better qualified person for the post. It is thus clear from
the evidence that Ms. Madidimole was appointment
on merit, as a
candidate who scored the highest in the interview. The contention
that the appointment did not take into account
skills and experience
accordingly falls away.
Was the extension of the recruitment process
irregular?
[31]
It
is common cause that after the interview process was extended other
employees were invited to apply. In this regard two candidates
applied, were shortlisted and interviewed. One of them, namely Ms
Madidimole, was successful.
[32]
The
respondent contended that the extension of the interview process was
allowed by the recruitment policy. It is clear from the
reading of
the recruitment policy and specifically clause 2.2 thereof, that it
was never intended for the recruitment policy to
be as rigid as
suggested by the applicant but rather that it would serve as a
guideline.
[33]
The
approach adopted by the respondent in extending the recruitment
process is similar to that followed in NEHAWU and Another v
Office of
the Premier of the Eastern Cape and Another,
[1]
where
the court found that the policy was a guideline and could be deviated
from when necessary. The view that the respondent’s
recruitment
policy is not rigid and serves as a guideline find support in clause
2.2 of the policy which reads as follows:
“
In
line with SARS strategic intent, core values and relevant legislative
provisions the following serve as guiding principles for
the
recruitment and selection process with the organisation.”
[34]
The
authority to extent the recruitment process can be inferred from
clause 2.18 of the policy which is quoted above. Accordingly,
the
facts as they stand do not support the proposition that the extension
of the recruitment process was irregular and unfair.
Did the respondent have an EE plan at the time the dispute arose?
[35]
The
applicants contended that the respondent did not have an EE plan at
the time the dispute arose. They also questioned the authority
of the
EE committee to extend the expired EE plan. The applicant further
contended that the EE plan can only become operational
once adopted
by Exco or the Commissioner.
[36]
To
this extent the applicants submitted that in extending the 2007/2010
plan the respondent acted contrary to the provisions of
Section 23 of
the EEA which reads as follows:
"Before
the end of the term of its kind employment equity plan, a designated
employer must prepare a subsequent employment
equity plan."
[37]
The
applicant relied also on both the case of
SA
Police Services v Solidarity obo Barnard,
[2]
and
Gordon
v Department of Health: KwaZulu-Natal
[3]
,
in contending that she was discriminated against because the
respondent did not have an approved EE plan.
[38]
In
Barnard, the Constitutional Court held at paragraph [40] of its
judgment that:
“
.
. .Designated employers must ensure that suitably qualified employees
from designated groups are equally represented in each working
category of the designated employer. The Act requires that an
employment equity plan must be devised and approved. Affirmative
action measures must be taken in accordance with an approved
employment equity plan.
”
[39]
In
Gordon, the SCA held that:
"It
has to be pointed out, as appears from the cases cited, that the
policies, plans and/or programs involved there were crafted
in
consideration of the context, such as identifying relevant
demographics and the gaps in representivity that had to be addressed
through affirmative action. This was not the case here nor was the
application of affirmative action one of the criteria applicable
in
the selection of candidates. These are issues that would have been
catered for in a specially formulated plan, policy or programme
which
would have provided the basis of the appointment. Clearly, the
appointment was an ad hoc and arbitrary act. It can never
in itself
amounts to a measure within the contemplation of section 8(3) or
section 9(2) which clearly require something much more
than an ad hoc
act. The appointment was not a measure in itself and was clearly
inherently arbitrary and therefore unfair as contemplated
in Item
2(1)(a)."
[40]
The
other case which the applicant relies on in contending that she was
unfairly discriminated against is that of
Mgomezeleni
Zamile MCMillan v Gauteng Department of Finance
,
[4]
where
the Gauteng Department of Finance refused to appoint the employee
after he was so recommended by the interviewing panel. In
that case
the Court found per Modise AJ, that it was apparent from the facts
that in refusing to implement the recommendation of
the interviewing
panel the department had relied on what was said by the Premier in
his opening of the parliament speech. He is
recorded as having said
that by 2009 women should constitute 50% of senior management. The
facts of that case are clearly different
to those of the present. In
that case the employer in refusing to appoint the candidate
recommended by the interview committee
relied not on any plan but
what was said in the opening address of Parliament by the Premier.
[41]
The
case of the respondent in the present matter is that the appointment
of Ms. Madidimole was in line with the EE plan which was
at the time
in place. It is contended in this regard that at the time of the
appointment that the representivity of white females
was 51.4% as
opposed to 19% of African females in the CHUT unit. The appointment
of Ms. Madidimole improved the representation
of the African females
moved to 21% in the unit.
[42]
The
issue of the existence or otherwise of the EE plan arises because of
what has been stated in the case law and in particular
the
Constitutional Court in the case of Barnard where it is aid that:
“
[36]
The test whether a restitution measure falls within the provisions of
section 9(2) is threefold. The measure must-
(a)
target
a particular class of people had been susceptible to unfair
discrimination;
(b)
be
designs to protect or advance those classes of persons; and
(c)
promote
the achievement of the quality.
[37]
Once the measure in question passes the test, it is neither unfair
nor presumed to be unfair. This is so because the Constitution
says
so. It says measures of this order may be taken. Sections 6(2) of the
Act, whose object is to echo section 9 (2) of the Constitution,
is
quite explicit that affirmative action measures are not unfair. This
however, does not oust the court’s power to interrogate
whether
the measure is a restitution measure within the scope of the
empowering section
9(2).”
[43]
In
my view the applicants contention that in extending the 2007/2010 EE
plan the respondent did not satisfy the requirements of
the EEA is an
approach which is highly technical and places emphasis on form rather
than substance. As stated earlier EEA requires
that a designated
employer, such as the respondent, should have an EE plan. The EEA
further requires the designated employer to
consult with the
representative unions on the development and the implementation of
the EE plan. It is further provided under section
23 of the EEA that
the employer must prepare a subsequent EE plan before the end of the
existing plan. The case of the applicant
seems to be that the
extension of the 2007/2010 plan did not amount to the adoption of the
EE plan.
[44]
Although
section 23 requires a plan to be developed before the expiry of an
existing plan the legislature does not prohibit the
employer together
with the consulting parties from the extending the old plan. The plan
could as indicated above be for a year
or five years. In the present
instance it is apparent that the plan was for three financial years,
2007/2010. It was less than
5 years.
[45]
It
has not been disputed in the present instance that the 2007/2010 EE
plan was extended in consultation with the relevant parties
by the EE
committee. This was done in accordance with the terms of reference
the EE committee which provides:
“
Purpose
The
EE and SD committee is a platform created for consultative purposes
as required by EE and SD legislation. Consultation may be
defined as
join problem-solving exercise with the parties striving to reach
consensus where possible”. It should be noted
that
problem-solving is something distinct from bargaining and that the
final decision, where consensus cannot be reached resides
with the
employer. The said Committee is tasked to oversee and influence all
Employment Equity and Skills Development related matters
at national
level.”
[46]
The
terms of reference of the EE committee provides that:
“
To
be consulted on the following:-
·
The
analysis of employment policies, practices, procedures and the
working environment in order to identify employment barriers
which
adversely affect people from designated groups.
·
The
preparation, implementations, and monitoring the national Employment
Equity Plan and in particular affirmative action measures
(including
numerical goals);
[47]
The
fact that the extended plan was not formally adopted by Exco or the
Commissioner, does not in my view, take the case of the
applicant any
further. It is not disputed that Exco was represented when the
resolution was taken. There is also no evidence that
Exco or the
Commissioner disapproved of the extension of the plan by the EE
committee.
[48]
In
my view, the extension of the EE plan by the EE committee resulted in
the 2007/2010 plan being a new plan which the respondent
used as a
guideline in the recruitment process that gave rise to the present
dispute. It has not been disputed that the representation
of white
females at grade 6 in the CHUT unit was disproportionate to that of
African women. Accordingly the appointment of Ms Madidimole
was
reasonable, objective and fair. Thus the evidence before me does not
show that the approach adopted by the respondent as being
inherently
arbitrary.
[49]
In
the circumstances I find that the applicant failed to make out a case
of unfair discrimination. I do not however, belief that
it would in
the circumstances of this case be fair to allow costs to follow the
results.
Order
[50]
In
the premises, the applicant’s claim is dismissed with no order
as to costs.
Molahlehi,
J
Judge of the Labour Court Johannesburg
Appearances:
For the Applicant: Mr P Maserumule of Maserule Inc.
For
the Respondent: Mr P Groenewald of
Serfontein,
Viljoen & Swart Attorneys.
[1]
(2011)
7 BLLR 68
(LC).
[2]
(2009)
1 ALL SA 39
(SCA).
[3]
2008
(29)
ILJ
2535
(SCA).
[4]
(
2015) 3 BLLR 308
(LC).