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[2018] ZALCCT 44
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Chitsinde v Sol Plaatje University (C482/15) [2018] ZALCCT 44 (29 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 482/15
Not
reportable
Of
interest to other judges
In the matter between:
Vusumzi Shadrack
CHITSINDE
Applicant
and
SOL PLAATJE
UNIVERSITY
Respondent
Heard:
21 –
22 June 2018
Delivered:
29 June
2018
SUMMARY:
Employment
Equity Act ss 6(1), 10(6)(a) and 11(2) – alleged unfair
discrimination on arbitrary ground. Complainant did not
discharge
burden of proof. Complaint dismissed with costs.
JUDGMENT
STEENKAMP
J:
Introduction
[1] The
applicant, Mr Chitsinde, applied for a job at Sol Plaatje University
(the respondent). He was unsuccessful.
He alleges that the refusal to
appoint him amounted to unfair discrimination on an arbitrary ground,
that ground being that he
was the only applicant required to write an
“aptitude test”. The University says that he was found to
be non-appointable
after he had been interviewed. The interviewing
panel decided to give him another chance to show that he was suitable
for the role
by way of a written submission. (That is what he
described as an “aptitude test”). He failed to persuade
them. There
was no discrimination.
Background facts
[2] The
applicant was employed at the National Institute of Higher Education
(NIHE) in Kimberley as an asset and
fleet management officer. That
entity was disestablished in 2013 and he was dismissed for
operational requirements. He accepted
a severance package and did not
challenge the fairness of the dismissal.
[3] The
newly established Sol Plaatje University in Kimberley offered former
employees of NIHE preference to apply
for posts at the University,
without offering any guarantee of employment.
[4] On
13 October 2014 the University’s Chief Operating Officer, Mr
Raymond Olander, sent the applicant a
letter under the heading:
“
Invitation to apply for a position at Sol Plaatje
University
”. He attached a list of available positions and
added:
· “In
the first instance, these positions are being advertised only among
staff currently have an administrative or support employment
association at NIHE-NC.
· You
are expected to formally apply for your selected position(s) by 21
October
2014.
· Selection
will be done by SPU and, for positions at grade 8 or above, will
include
a formal interview.
· Should
you be appointed, you will start employment with SPU on 1 January
2015
as a new employee of SPU.
· You
would have the right to refuse employment at SPU if the conditions of
the
position offered to you are considered unacceptable.
· At
the end of this process, the positions remaining unfilled because no
suitable
candidates could be found among the NIHE-NC staff, will be
publicly advertised and the normal selection processes will be
followed.”
[5] The
applicant applied for one of two positions as a “Senior
Secretariat Officer”. The minimum requirements
for the job
were:
· “NQF
6. A three year relevant qualification with a minimum of 360 credits.
· At
least three years relevant experience.
· Or
any acceptable combination of both the qualifications and/or
experience would
be regarded as ideal.
· Demonstrated
knowledge of the South African higher education sector.”
[6] The
key performance areas of the position included the provision of
administrative and functional support to
line function, clients and
staff; processing and coordination of documents; compilation,
printing and distribution of agendas and
minutes; and the attendance
and recording of meeting proceedings, including drafting of minutes.
The advertisement stated:
“
The University
reserves the right not to make an appointment. It is the attention of
the University to promote represent of it in
respect of race, gender
and disability through the filling of these posts.”
[7] The
applicant satisfied the minimum requirements and was called to an
interview. He was interviewed in October
2014 by a two-person panel
comprising Mr Olander and Prof Yunus Ballim, the Vice-Chancellor. It
is common cause that they asked
him to set out in writing how he saw
his role in the position of Senior Secretariat Officer. Whether they
did so before or after
his interview, is in dispute.
[8] The
applicant elected to respond to the request to explain his role in
writing by way of a “SWOT analysis”.
Although the
applicant’s attorneys did not prepare a bundle of documents as
his previous attorneys had undertaken to do by
30 October 2015, he
handed up a copy of that document at the hearing of the trial on 21
June 2018. It reads as follows:
“
THE ROLE OF
THE SENIOR SECRETARIAT OFFICER
The Senior Secretariat
Officer will be working in a very strategic environment. He will
assist the council to research its vision
and mission to make the Sol
Plaatje University a better University with in the African diaspora.
The Senior Secretariat Officer
should highlight following SWOT to the
council. [
sic
]
Strength
· It
is a new university within the Northern Cape.
· Urbanisation
will decreased [
sic
] in the Northern Cape.
· Tourism
will have an impact in the Northern Cape.
Weakness
The Sol Plaatje
University need [
sic
] more emphasis on research and
development to enhance the current and future curriculums.
Opportunities
Mining, houses, business
chambers, politics plays a big role in the stakeholder management.
Threat
Sol Plaatje does not
offer other faculties like finance, Logistics, Public Administration
for example for students who wants [
sic
] to study in
Kimberley. The (GDP) Gross domestic product of the Northern Cape will
increased [
sic
] drastically if other facilities are going to
be introduced in the coming future.”
[9] On
18 November 2014 Mr Olander informed the applicant that his
application was unsuccessful. The other applicant
from NIHE, Ms
Marelize van der Nest, was appointed to one of the two posts. The
vacant post was subsequently advertised and filled
in 2016 by Ms
Nelmarie de Vries, a graduate.
[10]
The
applicant referred a dispute to the CCMA on 27 February 2015. His
trade union alleged that the University had discriminated
against him
because it “requested the member to write a test during the
interview” but the other applicant for the
job was not required
to do so. The dispute was unresolved at conciliation and on 25 June
2015 he referred a dispute to this Court
in terms of s 10(6)(a) of
the Employment Equity Act.
[1]
The claim and the relief
sought
[11] The
applicant described the legal issues to be determined as follows:
“
The [University]
unfairly discriminated against the applicant by:
1.
requiring from the applicant to write an aptitude test, whilst
appointing another official to a position
similar to the position for
which the applicant applied, without expecting such other official to
also write an aptitude test;
2.
appointing the other official mentioned in the previous paragraph to
the position in question whilst
she did not meet the minimum
requirements for the position and by failing to appoint the applicant
to the position in question
whilst it did meet the minimum
requirements; and
3.
failing to provide the applicant with any reason for his
non-appointment.”
[12] The
applicant asks this court to declare that the University unfairly
discriminated against him by not appointing
him to the position of
Senior Secretariat Officer; to order the University to appoint him to
the position retrospectively to 1
January 2015; and to pays costs.
The legal framework
[13] In
terms of section 6 (1) of the EEA:
“
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.”
[14] The
applicant alleges that the University discriminated against him on an
arbitrary ground. Section 11(2)
of the EEA places the burden of proof
on him:
“
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.”
The evidence
[15] As
set out above, the underlying facts are mostly common cause. The only
pertinent factual dispute is whether
the interview panel requested
the applicant to write out how he saw his role before or after they
had interviewed him. And the
legal question to be determined is
whether, based on the fact that the applicant was the only one who
was required to put that
in writing (or, in his words, to write an
“aptitude test”), amounts to unfair discrimination on an
arbitrary ground.
[16] Only
the applicant and, on behalf of the University, Mr Olander gave
evidence.
[17] The
applicant alleged that the person who was appointed, Ms Van der Nest,
did not meet the minimum requirements
for the job. He could not
provide any further proof of that allegation and his attorneys did
not ask for discovery of her qualifications.
[18] The
applicant further testified that he was interviewed in November 2014
(although he states in his statement
of claim that he took part “in
a process of interviews and the writing of aptitude tests during
October 2014”). He
further testified that Prof Ballim asked him
to write an “aptitude test” – something that was
not required of
any other candidate. He stated that Prof Ballim only
asked him to answer one question, namely to describe how he saw the
role of
the Senior Secretariat Officer. He decided to do that by way
of a “SWOT analysis”. He did not explain the significance
or relevance of the “African diaspora” that he referred
to, nor could he explain why the “SWOT analysis”
concentrated on the strength, weakness, opportunities and threats to
the University rather than the role of the Senior Secretariat
Officer. According to him, he was interviewed only after he had
written the “test”.
[19] In
his evidence in chief, for the first time, the applicant raised two
other allegations: firstly, that he
did not have a good relationship
with one Mr Watson, a person who had facilitated the consultation
process at NIHE during the retrenchment
consultations; and secondly,
that Prof Ballim had once “shouted at him” in altercation
over a parking spot and refer
to him as “the union guy”,
and that he thought that he had been victimised because he was a shop
steward at NIHE. Under
cross-examination he could not explain the
relevance of the role of Watson at the NIHE consultation process,
given that the NIHE
is not a party to these proceedings. And he could
not explain why he had not raised the allegation about Prof Ballim’s
bias
in the interview or in the past three years leading up to this
trial.
[20] Mr
Olander, the University’s Chief Operating Officer, was part of
the interview panel with Prof Ballim.
He confirmed that Watson –
against whom the applicant had belatedly raised an allegation of bias
– was not an employee
of the University and that there was no
transfer of employment from NIHE to the University. As a special
dispensation to retrenched
employees of the NIHE, though, the
University invited them to apply for vacant posts at the University.
[21] Olander’s
recollection was very clear that he and Prof Ballim first interviewed
the applicant before
they asked him to set out in writing how he saw
his role. They did so in order to give them a second opportunity to
put down in
writing how he saw his role and what he could bring to
the post. There was simply no question of discrimination; in fact,
they
treated the applicant more beneficially than any of the other
people who applied for posts at the University. Despite that, he was
found not to be appointable. Even his written “SWOT analysis”
did not address his envisaged role in the post.
[22] Olander
further testified that, contrary to the applicant evidence, there was
at least one other job applicant
who was not appointed – one
Leonard Mogorosi. Under cross-examination, he was said fast and clear
that the applicant was
first interviewed. He and Prof Ballim both
formed the view that he was not appointable; yet they decided to give
him a second chance.
[23] Under
cross-examination Olander also explained that the successful
appointee, Ms van der Nest, satisfied them
that she possessed the
requisite combination of qualifications or experience for the post,
as specified in the advertisement. She
had been the faculty manager
and the personal assistant to the Chief Financial Officer at the
NIHE. She had, as Olander stated,
“overwhelming experience”
and could add significant value to the post. In fact, she is still
employed in that post.
Evaluation
[24]
The
technique to assess the probabilities where there is a factual
dispute is well known, as set out by Nienaber JA in
Stellenbosch
Farmers Winery
:
[2]
““
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail.”
[25]
It
is against that background that the evidence must be assessed,
bearing in mind that the applicant bears the onus of proof.
[3]
[26] The
applicant’s credibility was undermined by the fact that at the
trial, for the first time in three
years since he referred this
dispute to this court, he raised new allegations of victimisation or
discrimination against Prof Ballim.
Neither did he mention Watson’s
alleged bias, either in his referral to the CCMA or to this court.
Under cross-examination
he was also asked to go through his statement
of case again in order to point out anything that was not correct.
After the court
had adjourned for some 20 minutes for him to peruse a
statement of claim again – comprising six pages – he
confirmed
that everything in the statement was true. Yet both he and
his counsel conceded that it was not true, as stated in his statement
of claim, that “it was resolved that employees of NIHE will be
granted an opportunity to apply for positions at the respondent
as an
alternative to retrenchment”.
[27] The
applicant was not a credible witness; nor were his answers under
cross-examination clear and direct. This
will play a role in the
courts assessment of the probabilities.
[28] Olander,
on the other hand, was a credible and straightforward witness. Where
he could not recall specific
events, he said so. He readily conceded
that, as far as he could recall, Ms van der Nest had only a matric
qualification; but her
vast experience far outweighed that of the
applicant and she was a far more impressive candidate.
[29] The
main factual dispute to be decided on the probabilities is whether
the applicant was asked to explain
the envisaged role as Senior
Secretariat Officer in writing before or after he had been
interviewed. On the probabilities, I accept
the University’s
version that it was after he had been interviewed. Firstly, as set
out above, Olander was a more credible
and reliable witness than the
applicant. And on the probabilities, that version is far more
probable. They would simply have been
no need for the University to
ask the applicant at the outset to put it in writing. It is far more
probable, as Olander testified,
that the applicant was found wanting
in the oral interview; and, in order to give him a second chance, the
interview panel gave
him the opportunity to also set out in writing
how he saw his envisaged role. As Olander testified, they felt that
he may have
been nervous in oral interview and decided to give him
and on opportunity to reflect on the question and to set out his
answer
in writing in a more leisurely and less pressurised fashion.
That also accords with the one aspect on which both the applicant and
Olander agreed: that is, that he was simply asked to set out in
writing how he saw his role as Senior Secretariat Officer as opposed
to an “aptitude test” by way of a questionnaire or other
means.
[30] It
is against that factual background that the legal question must be
decided whether the applicant has discharged
the burden of proof is
required in s 11(2) of the EEA. I shall deal with each of those
elements separately. But firstly, what is
an “arbitrary
ground”?
[31]
I
am in respectful agreement with the authors in Du Toit et al,
Labour
Relations Law: A Comprehensive Guide
[4]
when
they note that the Employment Equity Amendment Act of 2013
reintroduced the concept of ‘arbitrary’ grounds of unfair
discrimination by adding ‘or on any other arbitrary ground’
to the listed grounds in s 6(1) of the EEA. They add:
“’
Other’
may be read as suggesting that the defining characteristic of all
prohibited grounds, including listed grounds, is
henceforth to be
characterised as ‘arbitrary’. Such a reversion to the
framework of Schedule 7 to the LRA, however,
is excluded by the
fundamental principle that it is not ‘lack of reason’ but
violation of human dignity that forms
the essence of ‘unfairness’
in all forms of discrimination proscribed by the Constitution and,
hence, by the EEA.
Thus, in terms of
Schedule 7, demonstrating that an employer’s conduct was not
‘purposeless’ but was motivated
by commercial rationale
was potentially a good defence against a claim of unfair
discrimination.
[5]
In the
context of the EEA it is evident that a ‘commercial reason’
in itself, of whatever magnitude, can never outweigh
the fundamental
right to dignity. By the same token, the reintroduction of the
prohibition of discrimination on ‘arbitrary’
grounds
cannot be understood as merely reiterating the existence of unlisted
grounds, which would render it redundant. To avoid
redundancy,
‘arbitrary’ must add something to the meaning of ‘unfair
discrimination’. Giving it the meaning
ascribed to it by
Landman J in
Kadiaka
– that is, ‘capricious’ or for no good reason –
would broaden the scope of the prohibition of discrimination
from
grounds that undermine human dignity to include grounds that are
merely irrational without confining it to the latter.”
[32]
The
only authority that Ms
Mokhaetsi
relied
on in her argument was
Watchenuka.
[6]
She
did so in order to argue that the applicant was deprived of his human
dignity when he was not appointed to the post. In this
regard she
quoted the following dictum:
[7]
“
The freedom to
engage in productive work – even where that is not required in
order to survive – is indeed an important
component of human
dignity, as submitted by the respondents’ counsel, for mankind
is pre-eminently a social species with
an instinct for meaningful
association. Self- esteem and the sense of self-worth – the
fulfilment of what is to be human
– is most often bound up with
being accepted as socially useful.”
[33]
But
that quote should be seen in context. Nugent JA went on to say the
very next paragraph that the protection even of human dignity
–
that most fundamental of constitutional values – is not
absolute and section 36 of the Bill of Rights recognises
that it may
be limited in appropriate circumstances. And it was indeed
justifiably limited in the context of that case, that had
nothing to
do with discrimination in the employment law context, but comprised a
challenge to section 2 of the Refugees Act
[8]
.
The SCA directed the Standing Committee for Refugee Affairs to
consider and determine whether to asylum seekers should be permitted
to undertake employment and to study pending the outcome of an
application for asylum. It certainly did not establish a principle
that an applicant for employment has the right to be appointed.
[34] I
turn then to the specific requirements to overcome the burden of
proof in s 11(2) of the EEA.
Was the conduct
complained of rational?
[35] In
terms of s 11(2), the applicant must prove that the conduct
complained of was not rational. The conduct
complained of was that he
was required to write a “test”, and no one else was.
[36]
On
a balance of probabilities, I have already found that Mr Olander and
Prof Ballim asked the applicant to set out how he saw his
envisaged
role after he had failed to impress them in the oral interview. If
anything, he was treated more beneficially than any
other applicant
for the post. It was done, as Olander testified, to give him a second
chance. And the decision by Olander and Prof
Ballim to give him that
chance was entirely rational. It was certainly not arbitrary in the
sense of being purposeless, capricious
or for no reason.
[9]
Did the conduct
complained of amount to discrimination?
[37]
The
applicant was treated differently to other job applicants. But that
was to his benefit. He was given a second opportunity to
convince the
interviewing panel that he was appointable; the others were not.
Although it amounts to differentiation, it does not
amount to
discrimination. He has not proven discrimination in the ’pejorative’
sense accepted in terms of constitutional
jurisprudence and ILO
Convention 111.
[10]
Was the discrimination
unfair?
[38] Given
that the applicant has not proven discrimination in the pejorative
sense, there was no unfair discrimination.
He did prove
differentiation; but that differentiation was beneficial term, was
not unfair, and did not amount to discrimination.
Conclusion
[39] The
applicant has not discharged the burden of proof set out in s 11(2)
of the EEA. He was treated differently,
but it was not ‘arbitrary’
in the sense of being irrational. The interviewing panel took a
rational decision to give
him another opportunity after he had failed
to impress them in the oral interview.
[40] The
applicant fails in his complaint. That leaves the question of costs.
Both parties asked for costs to follow
the result. I see no reason to
differ. The University is a newly established entity without
significant funds or any established
network of donor alumni. The
applicant sought to pursue a meritless case. He should be the costs.
Order
The
applicant’s claim is dismissed with costs.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT: Ms
M Mokhaetsi
Instructed
by Fixane attorneys (Bloemfontein).
RESPONDENT: Mr
Leon Joubert of C M de Bruyn & partners (Kimberley).
[1]
Act 55 of 1998 (EEA).
[2]
Stellenbosch
Farmers Winery v Martell et cie
2003 (1) SA 11
(A) par 5.
[3]
EEA
s 11(2).
[4]
6
ed (LexisNexis 2015) at 683.
[5]
See
Kadiaka
v Amalgamated Beverage Industries
(1999)
20
ILJ
373
(LC);
Lagadien
v UCT
[2001]
1 BLLR 76
(LC);
Germishuys
v Upington Municipality
[2001]
3 BLLR 345 (LC) 361.
[6]
Minister
of Home Affairs v Watchenuka
[2004]
1 All SA 21
(SCA).
[7]
Par
27.
[8]
Act
130 of 1998.
[9]
Cf
Du Toit et al,
Labour
Relations Law: A Comprehensive Guide
(6
ed 2015) at 698.
[10]
Ibid.