About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2017
>>
[2017] ZALCD 15
|
|
Ethekwini Municipality v IMATU obo Naidoo and Others (D285/15) [2017] ZALCD 15 (6 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
Not
Reportable
Case
no: D 285/15
In
the matter between:
ETHEKWINI
MUNICIPALITY
Applicant
And
IMATU
obo R NAIDOO
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
MASIPA N.O.
First
Respondent
Second
Respondent
Third Respondent
Heard:
10 May 2017
Delivered:
06 June 2017
JUDGMENT
Saloojee
AJ
Introduction
[1]
This is an application to review and set
aside the third respondent’s (the Commissioner’s) award,
which found that the
applicant’s failure to promote Mr.
Rubundran Naidoo (the employee) to be an unfair labour practice.
[2]
The applicant also seeks to correct and
replace the award with an order dismissing the referral,
alternatively to refer the dispute
back to the bargaining council for
a new hearing.
[3]
At the commencement of the hearing, Counsel
agreed to confine the grounds of review to, whether the
Commissioner’s finding
that the applicant applied the 2014 to
2018 Employment Equity Plan inconsistently in relation to the
Employment Equity Plan for
2009 to 2013.
Background
[4]
The employee is an Indian male who worked
for the applicant for a period of 17 years. The employee had
previously held the position
of an Acting Manager from 2007 to 2011
and at the time of the dispute, the employee employed as a Senior
Inspector.
[5]
On 1 July 2013, the applicant advertised
the position of Relationship Manager, which is a Level 15 position.
The employee submitted
an application for this position.
[6]
The employee was interviewed for the
position and on 11 October 2013 the employee was recommended for the
position as he had achieved
the highest score. However, the
applicant’s City Manager refused to accept the recommendation
as the recommendation did not
accord with the applicant’s
employment equity plan.
[7]
The employee referred an unfair labour
dispute to the second respondent for resolution. The Commissioner’s
award in favour
of the employee is the subject of this review
application.
Analysis
[8]
The applicant’s employment equity
plan for 2009 to 2013 was applicable for the period 1 January 2009 to
1 December 2013. Upon
expiration of this period, the applicant
extended the application of this employment equity plan until a new
plan was adopted.
[9]
The applicant’s employment equity
plan for 2014 to 2018 came into effect on 1 September 2014.
[10]
The applicant’s ground of review
takes issue with paragraphs 6.13 to 6.19 of the award. In these
paragraphs the Commissioner
noted the applicant deviated from its
2014 to 2018 employment equity plan in appointing an additional four
Indian females in a
demographic that already contained its maximum
number and that the employee was refused a position where Indian
males were over
represented.
[11]
The
Constitutional Court stated in
Solidarity
and others v Department of Correctional Services and others (Police
and Prisons Civil Rights Union and another as
amici
curiae
)
[1]
that,
“
The
important question that arises is, therefore, whether the
Barnard
principle applies to African people, Coloured people, Indian people,
people with disabilities as well as women or whether its application
is limited to White people. Ms Barnard was refused promotion on the
basis that White people were already overrepresented in the
occupational level to which she wanted to be appointed. This Court
upheld this reason. The question is, therefore, whether an employer
may refuse to appoint an African person, Coloured person or Indian
person on the basis that African people or Coloured people or
Indian
people, as the case may be, are already overrepresented or adequately
represented in the occupational level to which the
particular
African, Coloured or Indian candidate seeks appointment. The question
also arises whether the
Barnard
principle
applies to gender with the result that a man or woman could be denied
appointment to a position at a certain occupational
level on the
basis that men or women, as the case may be, are already adequately
represented or overrepresented at that level.
In
Barnard
,
Moseneke ACJ, writing for the majority, said:
“
The
respondent accepted, as we must, that the Instruction gave the
National Commissioner the power and discretion to confirm or
forgo
the recommendations made by the interviewing panel and Divisional
Commissioner. He was not bound by the recommendations,
particularly
in relation to salary level 9 posts. The National Commissioner
retained the power to appoint a candidate best suited
to the objects
of the Employment Equity Plan. The record shows that on several other
occasions, the National Commissioner declined
to fill up positions
because suitable appointments, which would have addressed
representivity, could not be made. Here, he exercised
his discretion
not to appoint Ms Barnard, even though she had obtained the highest
score, because her appointment would have worsened
the representivity
in salary level 9 and the post was not critical for service delivery.
Again, in his discretion, he chose not
to appoint Mr Mogadima or
Captain Ledwaba (Mr Ledwaba) even though their appointment would have
improved
representivity.
I cannot find anything that makes his exercise of discretion
unlawful.”
In
my view, the application of the
Barnard
principle is
not limited to White candidates. Black candidates, whether they are
African people, Coloured people or Indian people
are also subject to
the
Barnard
principle. Indeed, both men and women
are also subject to that principle. This has to be so because the
transformation of the workplace
entails, in my view, that the
workforce of an employer should be broadly representative of the
people of South Africa. A workplace
or workforce that is broadly
representative of the people of South Africa cannot be achieved with
an exclusively segmented workforce.
For example, a workforce that
consists of only White and Indian managers and, thus, excludes
Coloured people and African people
or a senior management that
consists of African people and Coloured people only and excludes
White people and Indian people or
a senior management that has men
only and excludes women. If, therefore, it is accepted that the
workforce that is required to
be achieved is one that is inclusive of
all these racial groups and both genders, the next question is
whether there is a level
of representation that each group must
achieve or whether it is sufficient if each group has a presence in
all levels no matter
how insignificant their presence may be. In my
view, the level of representation of each group must broadly accord
with its level
of representation among the people of South Africa.”
[12]
Thus, the employee as an Indian male falls
within the definition of the Barnard principle and he may be refused
a position if his
appointment would have worsened representation of
Indian males in his level.
[13]
In
Solidarity
supra,
the
Constitutional Court stated:
“
The
EE Act, like all legislation, must be construed consistently with the
Constitution. Properly interpreted the EE Act seeks to
achieve a
constitutional objective that every workforce or workplace should be
broadly representative of the people of South Africa.
The result is
that all the groups that fall under “Black” must be
equitably represented within all occupational levels
of the workforce
of a designated employer. It will not be enough to have one group or
two groups only and to exclude another group
or other groups on the
basis that the high presence of one or two makes up for the absence
or insignificant presence of another
group or of the other groups.
Therefore, a designated employer is entitled, as a matter of law, to
deny an African or Coloured
person or Indian person appointment to a
certain occupational level on the basis that African people, Coloured
people or Indian
people, as the case may be, are already
overrepresented or adequately represented in that level. On the basis
of the same principle
an employer is entitled to refuse to appoint a
man or woman to a post at a particular level on the basis that men or
women, as
the case may be, are already overrepresented or adequately
represented at that occupational level. However, that is if the
determination
that the group is already adequately represented or
overrepresented has a proper basis. Whether or not in this case there
was a
proper basis for that determination will be dealt with later.”
[14]
The
representation of a particular demographic at a particular level is
in issue. However, at arbitration the applicant’s
Senior Human
Resources Manager could not confirm the material issue that Indian
males were over represented for senior management.
[2]
[15]
The
applicant’s Senior Human Resources Manager referred to the 2014
– 2018 employment equity plan, which reflects 100
positions
available for Indian males in senior management and that 97 of these
positions were filled.
[3]
[16]
This leaves three available positions in
the applicant’s quota of Indian males.
[17]
The
applicant’s ground of review has to satisfy the test in
Sidumo
and
Another
v Rustenburg Platimun Mines Limited and Another
[4]
that the conclusion
reached
by the commissioner is one that a reasonable decision-maker could not
reach.
[18]
The Commissioner relied on the
inconsistency between the applicant’s appointment of four
Indian females and the applicant’s
refusal to appoint the
employee. The Commissioner’s reasoning cannot be faulted as
neither the Commissioner nor any of the
witnesses were referred to
the 2009 – 2013 employment equity plan. The applicant should
have led evidence on its 2009 –
2013 employment equity plan.
[19]
The 2009 – 2013 employment equity
plan was material to the applicant’s case at arbitration.
However, the applicant did
not lead evidence or cross-examine the
employee on this plan.
[20]
In
Head
of the Department of Education v Mofokeng and others
[5]
,
the Labour Appeal Court held that:
…
The
court must nonetheless still consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result
could be
reasonably reached in light of the issues and the evidence. Moreover,
judges of the Labour Court should keep in mind that
it is not only
the reasonableness of the outcome which is subject to scrutiny. As
the SCA held in Herholdt, the arbitrator must
not misconceive the
inquiry or undertake the inquiry in a misconceived manner. There must
be a fair trial of the issues.
[21]
In light of the evidence, the Commissioner
evaluated the facts
presented at the hearing and came to a conclusion that is reasonable.
Conclusion
[22]
In the circumstances, the applicant has not
made out a case to review and set aside the Commissioner’s
award.
Order
[23]
In the premises, the following is made:
1.
The application is dismissed.
2.
The applicant is ordered to pay the first
respondent’s costs.
_______________________
YF
Saloojee AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: J Nxusani SC
Instructed
by: Hlela Attorneys
For
the respondent: MMH Titus
Instructed
by: Macgregor Erasmus Attorneys
[1]
[2016]
10 BLLR 959
(CC) at para. 38 to 40
[2]
Transcribed
Record, page 61 – 64
[3]
Transcribed
record, page 61, line 12 to 14. Also see: page 51, Volume 3 of the
pleadings
bundle
[4]
[2007] 12 BLLR 1097
(CC)
at para. 110
[5]
[2015]
1 BLLR 50
(LAC) at para. 1