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[2018] ZALCJHB 31
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Khumalo v University of Johannesburg (JS533/16) [2018] ZALCJHB 31 (6 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 533/16
In
the matter between:
NTSELISENG KHUMALO
Applicant
and
UNIVERSITY OF JOHANNESBURG
Respondent
Heard:
24 & 25 August 2017
Delivered:
6 February 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
In her statement of claim, the
applicant (Ms Khumalo) seeks an order that her dismissal by the
respondent (University) be declared
to constitute unfair
discrimination within the meaning of the provisions section 6
[1]
of the Employment Equity Act.
[2]
Her claim is premised on the allegation that the University
dismissed her on a listed discriminatory ground being her social
origin or citizenship. The University opposed the claim and disputed
that Khumalo was subjected to discrimination. It contended
that she
was instead dismissed for gross dishonesty.
Background:
[2]
The University is a tertiary
educational institution established in terms of the provisions of the
Higher Education Act
[3]
.
Khumalo was offered and had accepted a contract of employment as a
Lecturer in the University’s Industrial Psychology and
People
Management School. She had not commenced her employment in earnest
when she was dismissed.
[3]
The facts of this dispute are to a large extent common cause and may
be summarised as follows:
3.1
On or about 9 April 2015, the University published an
advertisement
wherein it called upon interested individuals to apply
for a position of an Academic in the Faculty of Management. The
advertisement
called upon the prospective candidates to possess the
following minimum requirements for the position:
“…
·
A Master’s degree
in Human Resource Management. Organisational Behaviour. Human
Resource Development or closely related area.
·
Teaching / training
experience at the reputable higher education institution, locally or
internationally.
·
An excellent ability to
speak and write in English.
·
Proof of well-developed
research background;
·
Published articles in
accredited, peer-reviews journals would be an advantage; and
·
You may be expected to
undergo psychometric testing.”
[4]
On or about 13 May 2015, Khumalo applied for the position
by submitting her
Curriculum Vitae
(CV) as attached to her
application. In her CV, Khumalo recorded that she was a South African
citizen. Khumalo had also completed
a form referred to as
“statistical data sheet” as part of the recruitment,
wherein she stated that she was a South
African citizen with
residential status.
[5]
On 17 August 2015, Khumalo was interviewed for the
position. She was recommended and offered the position on
10 September 2015.
The written offer outlined her
remuneration package. She was required to confirm acceptance of the
position by 14 September 2015.
[6]
On 11 September 2017, Khumalo wrote to the
University in acceptance of the offer of employment. On or about
15 September 2015,
the University wrote a letter to Khumalo
titled “
Letter of Appointment: Lecturer”
. The
letter of appointment outlined the terms and conditions of her
employment. Clauses 10 and 15 of the letter are pertinent for
the
purposes of these proceedings and read as follows:
“…
10. NON-SOUTH AFRICAN
RESIDENTS:
This
appointment is subject to the condition that you provide the
University of Johannesburg with the confirmation of your valid
work
visa
/permanent residence of this country. Kindly utilise this
letter of appointment to facilitate the processing of such via the
relevant
authority.
You
are advised to submit an application for the extension of your
visa
at least six weeks before it expires. Should you intend applying for
permanent residence, you are required to do so as soon as
possible
after arrival in this country and are required to continue extending
your work
visa
until such time as permanent residency is
granted. Should your services with the University of Johannesburg
terminate for any reason
during the period of your temporary
residence the University is obliged to advise the Department pf Home
Affairs of such termination.
Please submit a copy of your work
permit/visa and any extension thereof, and your permanent residence
certificate, to Human Resource
Administration for retention on your
personal file.
And
15.
DISCLOSURE OF MATERIAL FACTS:
Should
any information come to the attention of the University after you
have been employed which at the time of your employment
would have
materially impacted on whether you would have been offered a position
by the University or not, then this may constitute
grounds for the
termination of your employment.
[7]
In a letter dated 24 November 2015, the University alleged
that it had offered Khumalo the position believing that
she was a
South African Citizen. The letter
inter alia
read as follows:
“…
As you may recall, we advertised the
position of Lecturer indicating amongst others that the institution
could make an appointment
in line with its obligations towards
individuals from historically disadvantaged grouping.
It is for this reason that you were
specifically questioned regarding your citizenship on which you
confirmed in the interview that
you indeed a South African Citizen.
We are of the view that you may not be
a citizen as per the provisions of the Employment Equity Act (as
amended) and as a result
do not qualify for the appointment as we
were placed under the impression that you were a candidate as listed
above.
You are accordingly afforded an
opportunity to respond in writing to the aforesaid provisional view.
You are specifically invited
to bring anything to our attention that
may influence our view and reasons as to why your contract of
employment should not be
rescind[ed]”
[8]
Khumalo’s reply to the above in a letter dated
27 November 2015, was as follows:
“
Your
correspondence dated 24
th
November 2015
instant bears reference. I confirm and reiterate that I am a South
African citizen. This by virtue of my
marriage to MOKHELE JOHN
KHUMALO with ID number […], a South African by birth. I hope
to have advised you accordingly.”
[9]
After numerous correspondence between the University, Khumalo and the
parties’ attorneys of record, the University took
a decision to
prefer charges of misconduct against Khumalo. On 14 January 2016,
the University dispatched a notice to
her to attend a disciplinary
enquiry. The said notice recorded the following:
“…
1.
You are hereby required
to attend a disciplinary enquiry into allegations of gross misconduct
against you.
2.
The alleged
transgressions of gross misconduct against you are as follows:-
2.1
Gross dishonesty in that during your application to the University as
a lecturer within the Department
of Industrial Psychology and People
Management, and subsequently, you misrepresented that you were a
South African citizen in circumstances
where you are not. But for
your misrepresentation as aforesaid, the University would not have
offered you employment.
2.2
Alternatively and in any event, it is contended that it is just and
equitable to terminate the
employment relationship on the grounds of
impossibility of performance in that you are not lawfully permitted,
in terms of the
Immigration Act or otherwise, to work for the
University of Johannesburg.
…”
[10]
On 21 January 2016, Khumalo appeared before an internal
disciplinary tribunal on the allegations of misconduct preferred
against her. In an outcome dated 24 January 2016, the
chairperson of the internal disciplinary tribunal found Khumalo
guilty of the charge as outlined in clause 2.1 of the notice, and she
was subsequently dismissed on 31 January 2016.
[11]
Khumalo launched an appeal with the office of the Vice - Chancellor
of the University. In a letter dated 5 February 2016
she
was informed that;
“
After
reviewing the findings of the chairperson dated 21 January 2016
and considering your subsequent appeal dated 27 January 2016,
I regret to inform you that I concur with the decision of the
Chairperson, Larry Shear.
Subsequently this is to confirm that
your services will be terminated as of 31 January 2016.
…”
[12]
On 10 March 2016, Khumalo referred an unfair discrimination
dispute to the Commission for Conciliation Mediation
and Arbitration
(CCMA). Conciliation having failed, a certificate of non-resolution
was issued by the CCMA, hence the claim before
the Court.
The
evidence:
[13]
Khumalo’s evidence in support of her claim may be summarised as
follows:
13.1
She was previously employed by the University of KwaZulu-Natal (UKZN)
as a
Lecturer in Human Resource and Organisational Behaviour. In her
CV, she had stated that she was a South African as she was married
to
a South African since 2008. A copy of her Identity Document was made
available to the University’s representatives, in
particular,
to the Human Resource Management representative Ms Antoinette Kanfer
before the commencement of the interview.
13.2
After the interview, she was informed that she had been appointed,
and the
University requested that she provide it with a copy of her
previous payslip. She subsequently accepted the offer of appointment.
13.3
In the University’s letter of appointment there was no
requirement that
she must be a South African citizen. After the
acceptance of the offer, she was required to sign another document in
September 2015.
She then resigned from her position at UKZN, as
she had to assume her duties at the University.
13.4
On or about 24 November 2015, she received a letter from
the University
requiring her to provide reasons why her employment
should not be rescinded taking into account that it had come to its
attention
that she was not a citizen of the Republic. Her reply to
that letter was to the effect that she was of the view that she was a
citizen of the Republic at the time of her application for
employment.
13.5
In January 2016, when she reported for duty, she was given a
copy of her
employment contract. She was at the same time informed
that the University intended taking disciplinary action against her.
She
was of the view that there was no condition in the advertisement
that the position advertised was reserved for individuals from
previously disadvantage groups, or that prospective applicants ought
to have been citizens of the Republic.
13.6
On 14 January 2016, she was required to sign her contract
of employment.
She holds
inter alia
a Master of Business
Administration (MBA) degree and understood the disciplinary processes
to a certain extent. At the time of
her response to the advertisement
of the position, she was not certain what the terms or phrases “EE
/ AA” meant. She
was further unaware that citizens of foreign
origin could not be classified as EE/AA candidates. She nonetheless
persisted with
the contention that at the time of her application,
she considered herself a citizen of the Republic.
13.7
In her online application and her CV, she recorded that she was a
citizen of
the Republic, even though a copy of her Identity document,
which she handed over to the University during the interview process,
recorded that she was a ‘
Non-Citizen’
of the
Republic.
13.8
During the interview, three (3) candidates were interviewed for the
position
including herself. She and another candidate a Zimbabwean
National, Dr Herbert Kanengoni were appointed.
13.9
During the interview and subsequently thereafter, she was never asked
if she
was not a citizen of the Republic. However, if the University
had asked her, she would have replied that she was in fact a citizen
of the Republic.
[14]
The University led the evidence of Ms Antoinette Kanfer (Kanfer) its
Human Resources: Business Partner in the Faculty of Management
in
support of its case. Her evidence may be summarised as follows:
14.1
The advertisement for the post indicated that “EE/AA” was
applicable.
This was in reference to affirmative action and
employment equity requirements. The purpose of the disclaimer in the
advertisement
was to notify prospective applicants, that persons from
previously disadvantaged groups would be given preference.
14.2
She was present throughout the interview process. There were two (2)
successful
candidates, Khumalo and Dr. Kanengoni. The University had
set itself 70% equity targets in favour of the previously
disadvantaged
group during the year Khumalo was appointed.
14.3
During the interview process, the chairperson of the interviewing
committee
asked Khumalo whether she was indeed a citizen of the
Republic and she replied in the affirmative.
14.4
Kanfer contended that Khumalo on at least three occasions stated that
she was
a citizen of the Republic; and as such, there was no reason
to doubt her version. She confirmed that Khumalo had also handed in
a
copy of her Identity document during the interview process.
14.5
Khumalo was found guilty on charges of dishonesty. The effect was the
University
could not trust her, as she had been dishonest in her
conduct with the University. As an academic institution the
University could
not retain her due to her dishonesty and because a
trust relationship could not be sustained.
14.6
She contended that the University did not discriminate against
Khumalo. As
it had equity targets to meet and further to create
balance in its staff complement. Dr Kanengoni was a foreign national,
and it
could therefore not be correct that the University had
discriminated against Khumalo based on her citizenship.
14.7
Khumalo met the minimum requirements of the advertised position.
However, the
disclaimer that EE/AA may apply did not constitute a
minimum requirement of the position. The University reserved the
right to
make an appointment in accordance with its’ EE/AA
targets, and the disclaimer did not exclude non-South Africans from
applying
for the position.
14.8
Khumalo in her CV, her online application, and during the interview
reiterated
that she was a South African citizen. She maintained also
at the Disciplinary Enquiry that she was a citizen of the Republic as
a result of her marriage to a South African even though her Identity
Document stated otherwise.
14.9
There was a four (4) months period between the date of the interview
and the
date the University discovered that Khumalo was not a citizen
of the Republic. The delay in the discovery was due to the fact that
the application and appointment had to go through the administration
processes, and then be sent to the executive committee for
approval.
The issue of the Identity Document was discovered at a later stage
when Kanfer went through Khumalo’s documents.
It was at that
point when Kanfer contacted the Chairperson of the committee.
Evaluation:
[15]
Central to this dispute is whether a case of discrimination was made
out. In accordance with the parties’ signed pre-trial
minutes,
the issues the Court was required to determine are:
a)
Whether or not the dismissal
constituted discrimination on the basis of Khumalo’s social
origin and, if so, whether or not
discrimination was unfair and in
violation of the provisions of section 6 of the Employment Equity
Act
[4]
or;
b)
Whether or the dismissal was directly linked to Khumalo’s gross
dishonesty.
Alleged
discrimination:
[16]
The test for determining whether a claim based on unfair
discrimination should be successful is that as enunciated by the
Constitutional Court in
Harksen
[5]
.
In terms of section 11 of
the Employment Equity Act (The EEA), the burden of proof is placed on
the employer in every case where
unfair discrimination based on the
Equity Act is alleged, to establish that the discrimination did not
take place or where it did,
it was fair
[6]
.
[17]
It must be stated as a starting point that from both the pleadings
and her evidence, it is not clear as to the basis upon which
Khumalo
had alleged that she was discriminated against. For a person to have
duly qualified for the post in question, other than
the requirements
of the post as advertised, two other significant requirements had to
be met.
[18]
The first was in respect of the disclaimer in the advertisement in
terms of which the University had indicated its intentions
to give
preference to candidates from previously disadvantage backgrounds.
This essentially pertained to the University’s
own employment
equity policies/practices and targets in accordance with the
provisions of the Employment Equity Act.
[19]
A second significant consideration emanating from the offer of
employment pertained to clause 10 of the offer in terms of which
certain requirements had to be met by ‘
Non-South African
Residents’
prior to commencing employment.
[20]
In her statement of claim, Khumalo stated that she is a citizen of
Lesotho. It was further not in dispute that she was married
to a
South African national, and further that her South African Identity
Document is clearly marked ‘
Non-Citizen’.
In her
CV, the on-line application form, and in her interview, Khumalo had
always insisted that she was a South African citizen.
Inasmuch as it
was reluctantly conceded in her testimony and in the submissions made
on her behalf that she was not a South African
citizen, her main
contention nonetheless was that her citizenship was acquired through
marriage, and thus her dismissal was connected
to her citizenship.
[21]
The issue of whether Khumalo was discriminated against on the grounds
of her citizenship can only imply a concession that she
was not a
South African citizen, a point she had already made in her statement
of claim. If I then understood Khumalo’s case,
her main
challenge would be in respect of the University’s employment
policy or practice, which include
inter alia
recruitment
procedures and selection criteria, and which in turn take into
account employment equity plans and targets.
[22]
As already indicated, other than the requirements of the post as
advertised, there was a disclaimer in the advertisement to
the effect
that in conjunction with the consideration of the requirements of the
post and qualifications, the University was committed
to providing
equal employment opportunities to persons with disabilities and those
from historically disadvantaged groups. Kanfer’s
testimony in
this regard was that the University for that year was striving for a
70% equity target. According to Kanfer, Khumalo
was during the
interview, asked by the Chairperson of the panel whether she was a
South African citizen for the purposes of
‘designated
persons’
[7]
and she had answered in the affirmative.
[23]
The first hurdle Khumalo is faced with is that she acknowledged the
disclaimer in the advertisement, even though she contended
that she
did not understand what affirmative action and employment equity was
all about. Be that as it may, her contention that
the advertisement
had not required that applicants to be South African Citizens within
the meaning of ‘designated groups’
is rejected. For her
to have qualified for the position and further in accordance with the
University’s equity plans, she
needed to have fallen within the
definition of ‘
designated group’
and she clearly
had not.
[24]
Clause 10 of the offer of employment specifically catered for
non-South African citizens. Despite Khumalo’s vacillation
between whether she or was not a citizen, and further after having
been afforded an opportunity to sort out her status, it is not
my
understanding that as at the time of her dismissal she had sorted out
her status. Thus, to the extent that she was not a South
African
citizen, and further to the extent that the provisions of clause 10
of the offer of employment had not been complied with,
the University
was therefore within its rights to invoke the provisions of clause 15
of the offer of employment.
[25]
On the whole, I did not understand Khumalo’s case to be that
the implementation of the University’s employment
equity
policies was flawed or that the policies themselves were
discriminatory. It is further trite that she could not have
complained
of discrimination when those practices emanated from
legislation or regulations. Thus, to the extent that there is any
merit to
the allegation of unfairness, the discrimination complained
of is authorised by legislation insofar as the definition of
‘
designated group’
is concerned, and it is for Khumalo challenge the constitutional
validity thereof
[8]
.
[26]
As at the time that she applied for the position she did not qualify
for appointment by virtue of the University’s employment
equity
plans and targets. She had not complied with the requirements set out
in clause 10 of her offer of employment. To further
put the matter to
rest, at the time of the interviews, and prior to her appointment,
there were two other candidates. One of the
other appointed, Dr
Herbert Kanengoni is Zimbabwean, whilst the unsuccessful candidate
was a white South African. There is therefore
no basis for any
conclusion to be reached that the termination of her services was in
any manner discriminatory.
The
dismissal:
[27]
Khumalo was charged and dismissed for gross dishonesty in respect of
her application for appointment. The nub of the charge
is that she
had misrepresented to the University that she was a South African
Citizen in circumstances when she was not, and but
for the
misrepresentation, the University would not have offered her
employment.
[28]
Myburgh AJ in
LTE Consulting
(Pty) Ltd v Commission for Conciliation, Meditation and Arbitration
and Others
[9]
considered various authorities where the courts had dealt with
instances of misrepresentation made by applicants for posts. The
message that comes from the judgments referred to by Myburgh AJ is
that misrepresentations made in
curriculum
vitae
or interviews, or an
omission to disclose certain pertinent facts in
curriculum
vitae
should be dealt with
harshly by the courts, even if the misrepresentations or omissions
are discovered after the employment had
commenced.
[29]
In this case, it was argued on behalf of Khumalo that to the extent
that she had insisted that she was a South African citizen
when she
applied and was offered the post, it cannot be said that there was
intent on her part to misrepresent the true state of
affairs in
regard to her status. It was argued that as a result of her marriage
to a South African, she believed (mistakenly) that
she was indeed a
citizen. It was further argued that at most, and on the common cause
facts, she was guilty of innocent misrepresentation,
as intention had
not been established, and there can be no grounds to conclude that
she was grossly dishonest.
[30]
Whether the misrepresentation was intentional or innocent as
contended on Khumalo’s behalf ought to be considered within
the
context of these facts;
a)
In her
Curriculum Vitae
, her on-line application form and in
the interview, she had confirmed that she was a South African
citizen. On Kanfer’s version,
Khumalo had persisted with that
version in the internal disciplinary enquiry.
b)
In her letter of appointment dated 15 September 2015, and
before she commenced
her employment on 1 January 2016, it
was alluded in its clause 10 that non-South African residents must be
in possession
of a valid work visa or permit/permanent residence of
the country, and if not, to facilitate the processing of such via
relevant
authorities. In her evidence, Khumalo, despite her
persistent contention that she was a South African, testified that at
the time
that she signed the contract of employment on
14 January 2016, there were already ‘issues’
surrounding her
citizenship, and that she was in the process of
resolving those issues. Be that as it may, the issue of citizenship
had previously
been raised with her in a letter dated
24 November 2015.
c)
Significant with the above is that even if Khumalo believed that she
was a citizen, she was
aware at least at the time that she signed the
contract of employment that there were concerns already raised in
regards to her
status. On her version, she was either in the process
of sorting out her citizenship/naturalisation, and yet in the same
token,
had not done anything to sort out the ‘error’ on
her identity document that indicated that she was a ‘non-citizen’.
[31]
In
G4S Secure
Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others
[10]
,
Savage AJA in addressing
the question of dishonesty in respect of candidates for employment
held that;
“
The
employment relationship by its nature obliges an employee to act
honestly, in good faith and to protect the interests of the
employer.
The
high
premium placed on honesty in the workplace has led our courts
repeatedly to find that the presence of dishonesty makes the
restoration of trust, which is at the core of the employment
relationship, unlikely. Dismissal for dishonest conduct has been
found to be fair where continued employment is intolerable and
dismissal is “
a
sensible operational response to risk management”
.
Obtaining employment on false pretences whether by misrepresenting
qualifications, skills, experience or prior work history has
been
found to justify dismissal, with it stated in
Boss
Logistics v Phopi and others
that
if this were not so, a sanction short of dismissal would only serve
to reward dishonesty.” (Authorities omitted)
[32]
There are various difficulties with Khumalo’s contentions that
her misrepresentation was merely innocent. The first as
correctly
pointed out by Mr. Lennox on behalf of the University is that in
terms of the provisions of section 14 of the Citizenship
Act
[11]
,
marriage does not confer citizenship. Thus, Khumalo’s claim
that she was of the view that she was a South African citizen
by
marriage is unsustainable.
[33]
Even if it could be said that Khumalo was under the mistaken belief
that she was indeed a South African citizen by virtue of
her
marriage, at the very least, and prior to commencing her employment,
she was aware that the University had raised concerns
about her
status. In fact, in letters dated 7 December 2015 and
13 January 2016, she was again granted an opportunity
to
provide proof of citizenship/naturalisation or at least proof of her
application for citizenship.
[34]
On her own version, Khumalo had not corrected the ‘error’
pertaining to her being labelled ‘
Non-Citizen’
in
her Identity Document. She was on her version, busy prior to the
commencement of her employment, with the issue of her naturalisation.
In the light of these considerations, it is my view that any mistaken
belief that she was a South African citizen ought to have
dissipated
when she received the correspondence from the University, and further
when she engaged the services of her attorneys
of record as at
9 December 2015.
[35]
In Khumalo’s attorneys of record’s reply to the
University, the contention that she was a South African had
persisted.
One would have expected that on a reading of section 14 of
the Citizenship Act, Khumalo and her attorneys would have seen the
folly
of her contentions that she was a citizen by virtue of her
marriage. But this was not to be, and accordingly, it cannot be said
that the misrepresentation was innocent.
[36]
It is trite that for an offence of misrepresentation to be
established, it also has to be shown that it was at least material
and persistent and had induced another party to act in a particular
manner. The University in this case has established these
requirements. Thus, based on the persistent misrepresentations made
by Khumalo starting in CV, her on-line application and interview,
the
University had no reason to doubt her status, and had thus appointed
her.
[37]
To the extent that the dishonest conduct was established, this
clearly impacted negatively on any
continued
employment relationship between the parties.
It
is trite that a dismissal for misrepresentation made by a candidate
for a post before commencement of employment, or even one
discovered
after the commencement of employment would be justified
[12]
.
Khumalo was about to commence her employment with the University when
the misrepresentation was discovered. Given the nature
of the
position she was to assume, and the level of integrity expected in
that position, it would not have made any sense to let
her continue
with her employment
[13]
.
[38]
It did not assist Khumalo’s case to contend that the University
should have raised alarm bells at the time that she was
interviewed
and when she handed in a copy of her Identity Document. The
University had indeed done its checks
albeit
after the
interview. Upon the discovery and concerns raised, it had
alluded Khumalo to these and the latter had instead persisted
with
that misrepresentation.
[39]
Even if there was a duty upon the University to verify the
information, the central issue however remains that the onus was
still upon Khumalo at all material times to have displayed high
levels of honesty and integrity in her application and interviews.
Accordingly, there is no basis for a finding to be made that the
dismissal was substantively unfair. Khumalo did not take issue
with
the procedural fairness of her dismissal, and a
ccordingly,
she should not be entitled to any relief.
Conclusions
and costs:
[40]
In summary, there is no basis to conclude that
the dismissal
of Khumalo constituted discrimination on the basis of her social
origin. Her dismissal was directly linked to her
dishonesty, and
procedurally and substantively fair.
[41]
I have further had regard to the issue of costs. Khumalo failed to
establish any basis for a discrimination claim, and I am
of the view
that her claim was ill-conceived and had clearly burdened the
University with unnecessary costs. I have further
taken into
account that Khumalo had resigned from her previous employment with
the University of KwaZulu-Natal with the expectation
that she would
be employed by the University having accepted the offer of
employment. In a sense she is the author of her own misfortune
in
that but for the misrepresentation, she would still be employed by
the University. The fact that as at the time of the proceedings
she
still found herself without a permanent job is purely of her own
making. Notwithstanding my views on the ill-conceived nature
of this
claim, considerations of law and fairness nonetheless dictate that
each party must be burdened with its costs.
Order:
[42]
In the premises, the following order is made:
1.
The applicant’s claim of unfair discrimination is dismissed.
2.
The applicant’s dismissal was fair.
3.
There is no order as to costs
____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr
S. Sukwana of Kekana Hlatshwayo Radebe Inc.
For
the Respondent:
Adv. M.A Lennox
Instructed
by:
Eversheds
Attorneys
[1]
Section
6
: 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, culture, language, birth or on any other
arbitrary ground
[2]
Act 55 of 1995 (as amended)
[3]
Act 101 of 1997 (as amended)
[4]
Section 6 (1) provides that:
“
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, birth or
on any other arbitrary ground.”
Section
6(2) provides that: “
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.
[5]
Harksen v Lane NO and
Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC)
at para 54 where it
was held that;
“
At the cost of repetition, it
may be as well to tabulate the stages of enquiry which become
necessary where an attack is made
on a provision in reliance on
section 8 of the interim Constitution. They are:
a) Does the
provision differentiate between people or categories of people? If
so, does the differentiation
bear a rational connection to a
legitimate government purpose? If it does not then there is a
violation of section 8(1). Even
if it does bear a rational
connection, it might nevertheless amount to discrimination.
b) Does the
differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i)
Firstly, does the differentiation amount to ‘discrimination’?
If it is on a specified ground, then 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 persons as
human beings or to affect them adversely in a comparably
serious
manner.
(ii)
If the differentiation amounts to ‘discrimination’,
does
it amount to ‘unfair discrimination’? If it has been
found to have been on a specified ground, then the unfairness
will
be presumed. If on an unspecified ground, unfairness will have to be
established by the complainant. The test of unfairness
focuses
primarily on the impact of the discrimination on the complainant and
others in his or her situation.
If, at the end of this stage of the
enquiry, the differentiation is found not to be unfair, then there
will be no violation of
section 8(2).
(c)
If the discrimination is found to be unfair then a determination
will have to be made as to whether the provision can be justified
under the limitations clause (section 33 of the interim
Constitution).”
[6]
Section 11 Burden of proof:
(1) If unfair discrimination is
alleged on a ground listed in section 6(1), the employer against
whom the allegation is made must
prove, on a balance of
probabilities, that such discrimination
(a) did not take place as alleged; or
(b) is rational and not unfair, or is
otherwise justifiable.
(2) If unfair discrimination is
alleged on an arbitrary ground, the complainant must prove, on a
balance of probabilities, that
(a) the conduct complained of is not
rational;
(b) the conduct complained of amounts
to discrimination; and
(c) the discrimination is unfair.
[7]
Section 1 of the Employment Equity Act as amended:
‘
Designated
groups mean black people, women and people with disabilities who-
(a)
who are citizens of the Republic of
South Africa by birth or descent, or
(b)
became citizens of the Republic of South
Africa by naturalisation:
(i)
before 27 April 1994: or
(ii)
after 26 April 1994 and who would have
been entitled to acquire citizenship by naturalization prior to that
date but were precluded
by apartheid policies.’
[8]
See
Sali
v National Commissioner of the South African Police Service and
Others
[2014] 9 BLLR
827
(CC);
2014 (9) BCLR 997
(CC); (2014) 35 ILJ 2727 (CC) at para 16
[9]
[2017] 12 BLLR 1259
(LC);
(2017) 38 ILJ 2787 (LC)
[10]
(2017) 38 ILJ 881 (LAC)
at para 26
[11]
The
South African Citizenship Act, No. 88 of 1995
,
Section 14
provides that:
‘
A married person shall,
subject to the provisions of this Act, be capable of acquiring and
losing South African citizenship in
all respects as if he or she
were an unmarried person, and no person shall acquire or lose South
African citizenship by reason
merely of a marriage contracted by him
or her.’
[12]
See
Department of Home
Affairs and Another v Ndlovu and Others
[2014] 9 BLLR 851
(LAC);
(2014) 35 ILJ 3340 (LAC)
at
paragraphs 14 - 15
[13]
See
SA Post Office Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
(2011) 32 ILJ 2442 (LAC)
at para 34, where Waglay DJP (as he then was) held that;
‘
To place an employee who was
guilty of dishonesty back in her position where honesty and
integrity are paramount to the execution
of duties, is to my mind
grossly unreasonable, but more importantly, it cannot be right and
proper to reinstate or re-employ
a person in a position that was
secured by the making of false statements.’