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[2018] ZALCJHB 127
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Swanepoel v Laerskool Muldersdrift (JS369/16) [2018] ZALCJHB 127 (20 March 2018)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Reportable / Not Reportable
Of interest to other Judges / Not of
interest to other judges
Case no: JS 369/16
In the
matter between:
ALLEMEIN
SWANEPOEL
Applicant
And
LAERSKOOL
MULDERSDRIFT
Respondent
Heard:
05 March 2018
Delivered:
20 March 2018
Summary:
JUDGMENT
LEKALE, AJ
Introduction and background
[1] On or about 24 November 2014 the
applicant and the respondent concluded a trial four months first term
employment contract in
terms of which the latter appointed the former
as agreed to teacher with effect from 01 January 2015 and terminating
on 31 December
2015.
[2] The applicant duly commence
employment but on or about 02 May 2015 she discovered she was
pregnant and proceeded to inform the
respondent’s principal
accordingly on 18 June 2015. Upon receipt of the news the principal
inquired from the applicant if
she intended to continue her
employment in 2016 to which the latter responded in the affirmative.
[3] On or about 19 June 2015 the
principal informed all the respondent’s staff of the
applicant’s pregnancy. On or about
16 September 2015 the
principal informed the applicant about the envisaged structural
changes in the respondent’s lower grades
and pointed out that
it was not certain if a vacant post existed for the applicant for the
2016 academic year.
[4] Latter in that year one grade two
teaching post was advertised for 2016 academic year and the applicant
applied for the same.
She attended an interview for the position in
question on or about 22 October 2015 together with three other
candidates. One Ms
Breedt, the applicant’s colleague, emerged
as the first best candidate and got appointed while the applicant was
scored the
third best candidate.
[5] On 13 October 2015 one Van der
Walt also the applicant’s colleague, resigned and her position
became vacant for the 2016
academic year. On 02 November 2015 the
applicant met the principal and the chairperson of the respondent’s
School Governing
Body “(SGB”) who informed her not to
have expectations in filling the relevant position as her contract
comes to an
end in December 2015. The applicant was later informed by
the chairperson that she would not be considered for the relevant
position
as she did not make the shortlist.
[6] The applicant’s services
terminated at the end of December 2015 in accordance with her fixed
term contract and she later
learnt that one Nadine Van Rooyen (nee
Van Heerden) was appointed in the relevant position for 2016 as she
was scored the second
best candidate during the interview leading to
Breedt’s appointment.
[7] She felt aggrieved by the
situation and referred a dispute concerning alleged unfair
discrimination to the Commission for Conciliation,
Mediation and
Arbitration (“the CCMA”) for resolution. When the dispute
remained unresolved after an attempt at conciliation
she approached
this court for adjudication.
[8] The matter was duly allocated to
my trial roll and at the commencement of the trial the parties
confirmed their pre-trial minute
duly filed in terms of which the
background hearing was, effectively, minuted as common cause between
them.
[9] At the close of the applicant’s
case on 06 March 2018 the respondent, through Mr Groenewald applied
for absolution from
the instant which application was duly opposed by
Mr Thompson for the applicant. I, thereupon, reserved judgment and
undertook
to deliver the same within a reasonable time before the end
of the term.
[10] This is, therefore, my judgment
on such an application.
Issue for determination
[11] The question in the instant
matter is whether or not there is evidence upon which a court,
applying its mind reasonable to
the evidence properly before it,
could or might find that the applicant is a victim of either direct
or indirect discrimination
at the hands of the respondent.
Applicant’s case
[12] The applicant, Ms Allemein
Swanepoel, testified under oath as the sole witness in support of her
claim,
inter alia
, to the effect that she was satisfied with
the results of the interview at the time of the appointment of Breedt
and she still
has no quarrel with the scores in that regard. She
feels aggrieved by the appointment of Nadine because she was more
qualified
than her. Members of the interview panels were biased
against her and in favour of Nadine. Panellist from the SGB were not
qualified
to score candidates and the tertiary representative on the
SGB who was also a panellist was clearly biased against her regard
being
had,
inter alia
, to her score sheet, the negative report
she gave about her contained respectively in exhibit “B”
as pages 43 and 51.
The budget report on page 45 of exhibit “B”
providing for maternity leave for 2016 is a sham.
[13] She was discriminated against
because of her pregnancy regard being had to the fact that the
practice at the respondent is
that the post in question was for the
person in her position as she was already inside and Nadine was an
outsider. Nadine also
gave the name of the relevant teacher
representative on the SGB as her mentor as evidenced by her
curriculum vitae (“CV”)
on page 17 of exhibit “B”.
the principal also pointed out the costs involved in appointing her
for 2016 regard being
had to the fact that she would be going on
maternity leave, thus, necessitating appointment of a relief.
Contentions for the parties
[14] Mr Groenewald submits,
inter
alia
, to the effect that the applicant failed to establish a
prima facie
case of discrimination insofar as she failed to
show differentiation linked to her pregnancy in her evidence. The
applicant simply
draws unreasonable inferences from the factual
matrix insofar as it is not her case that she was told that she was
not appointed
because of her pregnancy. She was clearly afforded an
opportunity to contest for the relevant position when it was already
known
that she was pregnant. Her evidence is not credible nor is it
reliable.
[15] On behalf of the applicant Mr
Thompson submits,
inter alia
, to the effect that the
respondent has a case to meet insofar as it is saddled with a burden
of proof in circumstances of the instant
matter. The panellist had
conflict of interest and the presumption is in section 11 of the
Employment Equity Act of 1995 (“the
EEA”) serves to
assist claimants in the position of the applicant insofar as it is
difficult to establish the required
nexus
between the
differentiation and the listed ground of discrimination.
Applicable legal position
[16]
In a claim for unfair
discrimination the claimant must lay the basis by establishing a
prima facie
case insofar as “
a
nexus
that is now the three dots in terms of the EEA, a claimant is obliged
to establish the differentiation that forms the basis of
the claim
and to establish a link between that differentiation and one of the
listed grounds in section 6(1) of the EEA, or an
unlisted ground in
circumstances where the claimant is able to show that the ground
relied upon has the potential to impair the
fundamental dignity of
persons as human beings or to affect them adversely in a comparably
serious manner.”
[1]
[17]
A bold allegation of
discrimination does not suffice for the purposes of section 11 of the
EEA which saddles the alleged perpetrator
with the burden of proof
where an allegation of unfair discrimination on a ground listed in
section 6(1) of the EEA is made because
“
[a
mere allegation of discrimination will not suffice to establish a
prima facie
case of discrimination calling on the alleged perpertrator then to
justifuy its actions.”
[2]
[18]
In order to survive absolution
the plaintiff, in the position of the applicant, “
has
to make out a
prima
facie
case in a
sense that there is evidence relating to all the elements of the
claim.”
[3]
[19]
Inferential reasoning in our
civil justice system is based on two cardinal rules of logic insofar
as the inference sought to be
drawn should be consistent with all the
proven facts and should be the most plausible in the
circumstances.
[4]
Application of legal position to
the facts and findings
[20] The applicant’s case is
based on circumstantial evidence insofar as her evidence is not to
the effect that she was told
that the reason for her non-appointment
was her pregnancy. She, thus, draws the inference that she was
treated differently and
that the differentiation was linked to her
pregnancy from the facts that she was not appointed although she was
already in the
fold, she was pregnant, the respondent’s
principal referred to the costs associated with her going on
maternity leave if
appointed and the appointment of a relief teacher
in her position and she was better qualified than the successful
candidate who
also came from the outside.
[21] Applicant gradually considered in
her evidence that the respondent had a policy governing interviews in
place and that it was
entitled to consider subjective factors such as
the characters of respective candidates over and above minimum
qualifications for
the post in question, she, further, considered
that the respondent had a budget for maternity leave and relief staff
for the relevant
year.
[22] The applicant, furthermore,
considered that Nadine was appointed on the basis of her score mark
during the interview but maintained
that the scores were a sham and
was fabricated to exclude her from competition. It is, however, not
the applicant’s case
that the scores were doctored after the
appointment of Breedt and for the purposes of leaving the position
being left vacant by
Van der Walt when she resigned.
[23] The evidence is to the effect
that when interviews were held Van der Walt position was not vacant
and available. There is,
further, nothing before the court to suggest
that during the interviews the panel was already aware that Van der
Walt was going
to resign. It can, therefore, not be reasonably
possibly be said that the panel scored Nadine better than the
applicant in anticipation
of Van der Walt’s resignation with a
view, eventually, appointing her in the relevant position when it
became available.
[24] The question is primarily whether
or not there is
prima facie
evidence of differentiation, if
so, whether or not there is
prima facie
evidence linking the
differentiation in question to the applicant’s pregnancy before
the court in order to establish an allegation
of discrimination.
[25] I am not persuaded that there is
prima facie
evidence of differentiation before the court
insofar as both the applicant and Nadine as the comparative were both
shortlisted
and invited for interviews. In my view to the preceding
extent it cannot be said that they were treated differently to each
to
each other. It is, further, not the applicant’s case that
the relevant scores should have been disregard and interviews
conducted
afresh between her and Nadine. It is, furthermore, not her
case that those scores were preferred solely for the purpose of
discriminating
against her because of her pregnancy.
[26] The applicant relies on the score
sheet to demonstrate the differentiation. She, however, accepts the
scores as valid and acceptable
in the appointment of Breedt as the
best candidate but rejects them when it comes to the appointment of
Nadine. There is, thus,
no
prima facie
evidence that the
applicant was scored differently because of her pregnancy for if that
was the case that fact would also be valid
and relevant to the
appointment of Breedt. There was only one position to fill when the
applicant was pitted against Nadine on
the basis of their interview
scores. Only one candidate could be appointed and such a candidate
was the best between the two according
to the scores.
[27] Even if I am wrong in the
preceding finding I am not satisfied that there exists
prima facie
evidence linking the differentiation to the applicant’s
pregnancy insofar as the inference that there exists a
nexus
between the pregnancy and the alleged differentiation is not the
plausible to draw in the circumstances regard being had to the
score
sheet.
[28] There is, as such, no allegation
of unfair discrimination made out in order to saddle the respondent,
as the alleged perpetrator,
with any burden of negating the
allegation or justifying the discrimination.
Order
[29] In the result:
1.
The respondent is absolved from the instant.
2.
I make no order as to costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For the
applicant:
Adv D Groenewald
Instructed
by:
Du Randt Attorneys
For the
respondent:
Mr M Thompson (Thompson Attorneys)
[1]
See
Mangena
& Others v Filler SA (Pty) Ltd and Others
[2009] 12 BLLR 1224
(LC) and
Mbamba
v Shepstone and Wylie
(2015) 36 ILJ 1805 (CC).
[2]
See
Mangena
supra
at paragraph 7
quoting with approval
Ntai
& Others v South African Breweries Ltd
(2001) 22 ILJ 214 (LC) at 218F.
[3]
See
Gordon
Lloyd Page and Associates v Riviera & Another
2001 1 SA 88
(SCA) at paragraph 2.
[4]
See
AA
Onderlige Assuransie-Assosisasie Bpk v De Beer
1982 2 SA 603
(A) and
Cooper
And Another N.N.O. v Merchant Trade Finance Ltd
2000 3 SA 1009
(SCA).