IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO 603/98
In the matter between:
THOMAS AUF DER HEYDE Applicant
and
UNIVERSITY OF CAPE TOWN Respondent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
INTRODUCTION
1. The University of Cape Town was, throughout the apartheid era and the many
years of legislated racial discrimination which characterised it, widely and
justifiably regarded as a bastion of liberality and a vigorous proponent of racial
equality.
2. That ethos has, to all intents and purposes, been perpetuated since the
establishment of the "new" South African democracy, bolstered and endorsed by
the constitutional imperatives which now require it.
3. Inherent in this practice is the concept of affirmative action and, in that context,
the University's Equal Opportunity Employment Policy, of which the following
extracts are of material relevance to the issues to be decided in this matter.
"1.1 An institution such as the University of Cape Town which has been established for some
considerable time and which strives to be a university of the first rank in an international as
well as an African context (Mission Statement, 1985) needs to ensure that it appoints to its
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staff only the best persons available. To appoint the best staff requires appointing those
individuals, who, over a period of time and in the context of their particular posts, will make
the greatest contribution to the work and the reputation of the University.
1.2 The University recognises that the notions of merit and of appointing the best person for the
job are not independent of context. The University has frequently based its appointments on
contextual considerations that have inter alia included negative or positive resource
implications tied to certain candidates, questions of departmental or faculty balance, "fresh
winds from outside", known versus unknown, definite commitments to the University or South
Africa versus vague commitments, special teaching needs, etc. To such considerations must
be added the importance of role modelling for students and the notion of University
departments acting as transient but crucially important training grounds for persons who may
ultimately be valuable staff members of other universities in the region.
1.3 The need to ensure that adequate and acceptable role models are available for a changing
student body implies that the University will seek to appoint as many South Africans as
possible to its academic and administrative staff. But the justifiable claim that South African
citizens have on the University's posts must be balanced by the need to seek freely good
applicants and to appoint the best of them to each particular vacancy. It is only by being
appointed in the face of international competition that South African academics can keep the
University "in the front rank"; (and yet a part of Africa, and especially South Africa).
1.4 The University accepts that it cannot be sure that it is appointing the best staff available if
the pool of available South African talent continues to be limited chiefly to white males. The
University must make every effort to develop the careers of blacks and women both within the
institution and, when this is possible, at a distance, in order to increase the number of
candidates able to compete for appointment on equal terms. Furthermore, through its search
and selection procedures, the University must make substantial efforts to seek potential
candidates amongst already well-qualified blacks and women and to encourage them to apply
for posts available at the University. The University believes that the teaching, learning and
research environment of a South African university which is staffed by able men and women
and by able whites and blacks will be considerably richer than that of a university whose staff
is seen as white male dominated.
1.5 Women and black persons have not had opportunities equal to those of white males. For a
variety of social, political and economic reasons, they have generally not been able to achieve
the same levels of formal qualification and of teaching and research experience as white
males. For this reason, the University accepts that it has a commitment to help overcome
imbalances created by this country's legacy of discriminatory practices, and will make
conscious efforts to equalise the access which women and black persons have to posts on its
staff establishments, such access to be based on merit.
1.6 The University dedicates itself to the task of ensuring that every post is filled by the person
able to make the greatest overall contribution to its mission. The University is confident that
it best serves the country and all of its people by adopting an equal opportunity employment
policy.
2. Policy
2.1 The University will adhere without exception to a policy of searching thoroughly for good
applicants in respect of all its vacancies and of appointing, in every case in the context of a
particular post, only the person who can be expected to make the greatest contribution to the
particular post, only the person who can be expected to make the greatest contribution to the
work and reputation of the University.
2.2 The University will carry out affirmative action in the specific sense of doing everything in its
power to help prepare black persons and women to become equal competitors for every post
on its establishment.
3.2 Identification of the best person for the job
3.2.1 Selection committees will try to identify all candidates who may be worthy of appointment,
and ultimately will determine, in the light of the qualifications of each applicant in relation to
the needs as stated in the advertisement and in the statement of further particulars sent to
candidates, the person who represents their best choice.
3.2.2 If a black person or a woman is judged fully appointment-worthy by a selection committee but
is not recommended for the particular vacant post under consideration, attention will be given
to the possibility of making a recommendation for the recruitment of the candidate.
Alternatively, arrangements may be proposed or explored whereby the career of the
candidate can be developed at this University in one or the other way. The candidate may
also be referred to other universities known to be in search of staff.
3.3 Career preparation
The University will enhance the career preparation of worthy blacks and women in every way
possible.
3.5.1 The chairpersons of selection committees for academic as well as administrative posts will be
responsible for ensuring that their committees consider with care the implications of an equal
opportunity employment policy. They will in addition ensure that the search procedures of
their committees are such that as many candidates as possible are identified who are worthy
of appointment."
4. THE BACKGROUND
In or about November 1994, the Respondent advertised for applications for the
appointment of a Lecturer/Senior Lecturer in its Department of Chemistry. The
opening paragraph of that advertisement was in the following terms:
"We invite applications for a lecturer/senior lecturer in Chemistry. This is a contract post
initially for three years with a possible extension to five years. The successful candidate will
hold a PhD degree, have demonstrated research excellence with a significant publication
hold a PhD degree, have demonstrated research excellence with a significant publication
record and a proven ability in lecturing undergraduate classes. An interest in Applied
Chemistry would be an advantage."
There followed details of the salary range and contact particulars and the
advertisement concluded as follows:
"The University of Cape Town is committed to policies of equal opportunity and affirmative
action which are essential to its mission of promoting critical inquiry and scholarship."
5. On 15 December 1994, the Applicant wrote to the Respondent applying for a -
Temporary Senior Lectureship in Chemistry.
He had, he stated in evidence, "understood the duration of the position to be
initially for three years, just as it says here, with a possible extension to five
years" and that, "............ if I were to be offered the position, it would be secure
for three years and that there was a very good chance that it would be extended
to five years."
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6. A series of meetings were then held by the Respondent's Selection Committee, at
which applications for the position advertised were reviewed and in due course,
on 24 April 1995, the Applicant received a letter from the Respondent's acting
Registrar, the following extracts of which are material:
"I have pleasure in offering you a three-year contract appointment as Senior Lecturer in the
Department of Chemistry with earliest possible effect.
.....................
....................
This appointment is for the period specified and does not carry any commitment to a
permanent appointment on the University staff. Within this period the appointment is subject
to three months' notice of termination from either side."
7. The three-year period for which the Applicant was thus appointed commenced on
8 May 1995 and terminated on 7 May 1998 and during this period the Applicant
was one of three such appointments made in the Department of Chemistry.
Neither of the other two appointees is white.
8. On 11 August 1997, the Respondent advertised for applications for the position of
Lecturer:Department of Chemistry. The appointment was to be from 1
January 1998 and required a candidate "with experience in any recognised area
of Chemistry." Details of the necessary qualifications and experience, as well as
the remuneration package and contact addresses were stated.
9. On 29 September 1997, the Applicant applied for the advertised post setting out
what he referred to as his attributes and strengths. On 7 November 1997 a letter
from the Registrar was addressed to him advising him that, "after careful
consideration by the Selection Committee" his application had not been
successful.
10. Drs K Chibale and K J Naidoo, the two black appointees, together with the
Applicant, to the initial three-year contract posts earlier referred to, were
respectively appointed to permanent positions as Lecturers in the Department of
respectively appointed to permanent positions as Lecturers in the Department of
Chemistry with effect from 1 September 1997 and 21 January 1998.
11. THE APPLICANT'S CLAIMS
The Applicant contends that the Respondent's failure, in the face of a reasonable
expectation on his part that it would do so, to appoint him in a permanent
position in its Chemistry Department, alternatively to renew his fixed-term
contract after it expired on 8 May 1998, constitutes an automatically unfair
dismissal in that its failure or refusal to do so is a consequence of the unfair
application of its Equal Opportunity Employment Policy, alternatively of direct or
indirect discrimination by the Respondent against him on the grounds of his race
and gender. Alternatively, his dismissal is a consequence of the Respondent's
failure to follow due procedure in terminating his employment on operational
grounds.
12. THE ALLEGED UNFAIR APPLICATION OF THE RESPONDENT'S EQUAL
OPPORTUNITY EMPLOYMENT POLICY
The appointment of two of the Applicant's black colleagues in the Department of
Chemistry to permanent positions, in alleged disregard of the Applicant's
indication of his wish similarly to be appointed, and notwithstanding that the
Applicant is, it is alleged, as well, if not better, qualified than the other two,
constitutes, the Applicant contends, the unfair application by the Respondent of
its Equal Opportunity Employment Policy, pursuant to which his two black
colleagues were appointed. One of them, moreover, Dr Chibale, is not a South
African citizen and the Respondent's employment equity policy, it is submitted, is
not applicable to non-South African citizens. That policy should apply only to
previously disadvantaged South African citizens in accordance with the
Constitution and the Labour Relations Act 1995. ("the Act")
13. In that context, it is argued, the Respondent's policy, per se, constitutes an unfair
labour practice, as does its implementation and application. Alternatively, it is
applied by the Respondent in an unfair and discriminatory manner in its
applied by the Respondent in an unfair and discriminatory manner in its
application to a non-South African citizen who was appointed to a position which
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the Applicant is qualified to occupy and which he in fact did occupy during the
three-year period of his contractual appointment.
14. The Respondent's conduct in that regard, constitutes an automatically unfair
dismissal as contemplated by Section 187(1)(f) of the Act; alternatively, it
amounts to an unfair labour practice as contemplated by Item 2(1)(a) of Schedule
7 of the Act; alternatively, it amounts to unfair conduct in its failure to comply
with the provisions of Section 189 of the Act.
15. THE RESPONDENT'S CASE
It did not dismiss the Applicant, the Respondent submits, but if it is found that it
did indeed do so, then such dismissal was not automatically, or on any other
substantive basis, unfair. It could, in the circumstances in which it occurred, have
been only on the grounds of operational requirements and, if that is in fact found
to have been the case, it is conceded by Mr H C Nieuwoudt, who appeared for the
Respondent, that it was procedurally unfair.
16. THE RESPONDENT'S REPLY
To the extent to which the Applicant relies on the provisions of Section 186(b) of
the Act for its contention that he was dismissed by the Respondent, he is
required, the Respondent submits, to satisfy two elements of the definition of
dismissal which it incorporates. In terms of the section -
"Dismissal" means that -
(b) an employee reasonably expected the employer to renew a fixed-term
contract of employment on the same or similar terms but the employer
offered to renew it on less favourable terms, or did not renew it."
What must therefore be established is, in the first instance, a reasonable
expectation of renewal and secondly that such renewal did not occur or was not
on the same or similar terms.
17. It is common cause that the Applicant was employed as a Senior Lecturer, for a
period of three years at a specified salary with incremental provisions. The only
expectation which, if indeed it could be established, he was entitled to hold would
therefore have been one of renewal of the fixed-term contract on the same or
similar terms and not one of permanent employment, a failure by the Respondent
to satisfy which would accordingly not constitute dismissal as envisaged by
Section 186(b).
Dierks v University of South Africa (1999) 20 ILJ 1227 AT 1247.
18. The reference in the initial advertisement to which the Applicant successfully
responded was to an appointment for a fixed period of three years. The further
reference therein to a possible extension of that fixed-term contract to five years
did not, the Respondent says, in the face of pertinent advice to the Applicant to
the contrary, justify a reasonable expectation on the part of the Applicant that the
contract would be so extended.
19. With regard to the appointment of Dr Chibale to the permanent position of
Lecturer in the Department of Chemistry, whilst that appointment was pursuant
to the Respondent's Employment Equity Policy, it was also on merit. Dr Chibale,
the Respondent contends, was better qualified for that particular post than was
the Applicant. Dr Naidoo's permanent appointment as a Lecturer in the
Department was four-square pursuant to the Employment Equity Policy, the terms
and provisions of which do not qualify the Applicant for such appointment.
20. Neither Dr Chibale nor Dr Naidoo was appointed to the vacant post of Lecturer in
the Chemistry Department for which the Applicant applied in September 1997.
The Applicant however was not considered to be a suitable candidate for this
appointment.
21. Finally and significantly, the Respondent contends, the Applicant's main area of
activity, namely the setting up of a science advice unit, did not materially
contribute to the mission of the Chemistry Department to contribute to the world-
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class status of the Respondent and did not justify the application of the funds
available to the Chemistry Department towards the funding of the Applicant's
employment costs.
22. WAS THE APPLICANT DISMISSED?
Section 186(b) of the Act is explicitly narrow in its terms. An employee will be
deemed to have been dismissed if an employer, in the face of a reasonable
expectation on the part of the employee that it would do so, fails to renew
(emphasis added) a fixed-term contract of employment on the same or similar
terms, or offers to renew it on less favourable terms. In essence therefore, the
section contemplates the renewal, which in my view would include the extension,
of what will continue to subsist as a contract post for a fixed and limited period,
upon terms broadly equating those initially applicable, where the prevailing
circumstances justify the employee's expectation that this will occur.
23. The contract post to which the Applicant was appointed was unequivocally stated
to be for an initial period of three years, which might possibly be extended for a
further two years. Any possible hope or expectation on his part that the
appointment might presage a permanent employment relationship with the
University was to all intents and purposes expressly negated by its stated
disclaimer "of any commitment to a permanent appointment on the University
staff."
24. This notwithstanding, Mr P Janisch for the Applicant, submits that the employer's
conduct contemplated by the section includes, by inference or import, not only a
refusal to renew or extend the initial contract, but to make it permanent.
25. That issue was the subject of critical examination in a published article by Prof
Marius Olivier.
"Legal constraints on the termination of fixed-term contracts of
employment: An enquiry into recent developments": (1996) 17 ILJ 1001.
"What is required in order to activate the provisions of s186(b) is an expectation that the
fixed-term contract in question would be renewed on the same or similar terms. It is evident
that the Act does not require that or regulate the position where the expectation implies a
permanent or indefinite relationship on an ongoing basis....... The reference to renewal on the
same or similar terms supports that this is the inference to be drawn from the wording of the
subsection. What s186(b) apparently envisages is that an employer should not be allowed not
to continue with fixed-term employment in circumstances where an expectation of renewal is
justified."
The remedy available to the employee if that occurs unfairly, Olivier says, is that
of reinstatement or re-employment on the same or similar terms, but not
appointment as a permanent employee or on an indefinite basis.
"This would consequently leave the possibility open that the employer could after the expiry
of the period of the subsequent fixed-term contract terminate the services of the employee
concerned, as long as the termination is not otherwise prohibited - such as where the
employee had once again a reasonable expectation that the contract would be renewed."
26. The gravamen of s186(b) in the context of what an employee would be entitled,
all other things being equal, reasonably to expect at the conclusion of the
specified period of a fixed-term contract, was examined by this court in -
Dierks v University of South Africa (supra)
The issue for determination in that matter bore a basic similarity, insofar as the
interpretation and applicability of s186(b) of the Act was concerned, to that in this
case. The Applicant was employed by the University on successive fixed-term
contracts, at the eventual conclusion of which he was not given a permanent post
in the face of what the court determined was in fact a reasonable expectation on
in the face of what the court determined was in fact a reasonable expectation on
his part that this would be the case. Citing Olivier ( supra) with apparent
approval, the court (Oosthuizen AJ), noting that the concept of "reasonable
expectation" as expressed in s186(b) has no statutory definition, characterised it
as including, essentially,
".................... an equity criterion, ensuring relief to a party on the basis
of fairness in circumstances where the strict principles of the law would
not foresee a remedy."
Whether or not the employee's expectation was reasonable, the court
commented, must be deduced on the basis that "apart from subjective say-so
or perception there is an objective basis for the creation of his
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expectation." This must needs be assessed on an analysis of the facts and
relevant circumstances bearing upon it (at page 1246).
27. The Applicant's claims in Dierks were premised on a submission that s186(b)
could not realistically be interpreted, notwithstanding its wording, as being
limited to reasonable expectations of renewals of fixed-term contracts, with no
expectation of permanent employment. That submission was examined by the
court at page 1247.
"Prima facie, it does seem logical that if a reasonable expectation can
lead to a renewal of a fixed-term contract, the same expectation should
lead to appropriate relief for permanent employment by implication
particularly if there is no provision in the Act to address the apparent
lacuna."
There were however, said Oosthuizen AJ, "other considerations which tend to
support the respondent's reliance on the wording of s186(b)", which
made no provision for the situation where an employee has an expectation of
permanent employment. The reason for that wording, in the court's view, "is
founded to a large extent on the patent unfairness of the indefinite
renewals of fixed-term contracts" and the further factor that Schedule 7(B) to
the Act provides in Item 2 a remedy to an employee claiming permanent
employment in the context of the residual unfair labour practices there defined.
28. An entitlement to permanent employment, the court concluded,
"..................... cannot be based simply on the reasonable expectation of
s186(b), i e an applicant cannot rely on an interpretation by implication
or 'common sense'".
It would require a specific statutory provision to that effect, particularly against
the background outlined above. It was held that the court "does not have the
jurisdiction to decide the crisp issue insofar as it concerns the reasonable
expectation of permanent employment."
29. The correctness of that decision was vigorously, albeit respectfully, challenged by
Mr Janisch. Citing with approval -
Wood v Nestle (SA) (Pty) Ltd: (1996) 17 ILJ 184 (IC)
and other authorities, he sought to extract therefrom what he referred to as a
"common denominator", namely "the refusal to allow an employer to rely upon
the effluxion of a fixed-term contract as a basis for parting company with an
employee, whilst fairness would demand, in the circumstances, that the
employee be treated as if he or she were employed on a longer-term or indefinite
basis." In the context of the unfair labour practice jurisprudence and the
objective of labour legislation in that regard, an employee should, he contended,
be protected not only against the failure to renew, but also the failure to extend
or make the contract permanent.
30. I have considerable difficulty with that submission. The wording of s186(b),
incorporated in an Act which is acknowledged to have been the product of
intensive consultation and debate directed, inter alia, towards the creation of a
broad legislated employment equity environment, is unequivocal and
unambiguous. It contemplates a reasonable expectation of renewal of a fixed-
term contract of employment and if, as the Applicant contends, that concept must
be broadened in the context of the application of equity principles, the question
must be asked why the simple expedient of including a reference to expectation
of permanent employment, was not followed.
31. It does not seem to me that that omission can be explained as an oversight. The
sub-section is one expressly dealing with fixed-term, limited-period contracts.
Nothing could be clearer and the suggestion that the reasonable expectation
which it contemplates, can relate to anything other than the benefit for which it
expressly provides, cannot, to my mind, be sustained.
32. On that specific aspect of this matter therefore, the Applicant could not
32. On that specific aspect of this matter therefore, the Applicant could not
legitimately, within the context of s186(b) of the Act, have formed a reasonable
expectation of permanent employment and accordingly, if he was unfairly
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dismissed, what must be established by him is that that dismissal was either
automatic in terms of s187 of the Act, or was constituted by the Respondent's
failure or refusal to renew (or extend) his fixed-term contract following expiration
on 8 May 1998, when he reasonably expected it to do so.
33. Only two provisions of s187 can realistically have any possible application in this
dispute. They are: Sub-section (1)(f), which provides that a dismissal is
automatically unfair if its reason is -
"(f) that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but not limited
to, race, gender, sex, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, political opinion, culture,
language, marital status or family responsibility;"
and sub-section 2(a) -
"(2) Despite sub-section (1)(f) - (a) A dismissal may be fair if the reason
for dismissal is based on an inherent requirement of the particular job."
34. The applicability of s187(1)(f), the Applicant submits, arises from the
Respondent's unfair application of its Equal Opportunity Employment Policy,
alternatively, as a consequence of direct or indirect discrimination by the
Respondent against the Applicant on the grounds of race and gender. Significant
in that regard, is the further alternative claim, introduced by way of amendment
at the trial, that the Respondent's conduct constituted an alleged unfair labour
practice in terms of Item 2(1) of Schedule 7 of the Act. That provision has the
effect of constituting what would be an automatic dismissal in terms of s187, an
unfair labour practice in terms of the schedule, assessed on virtually identical
criteria.
35. The Applicant's allegations of automatic unfair dismissal, alternatively of an unfair
labour practice by the Respondent, will therefore fall to be assessed on the same
labour practice by the Respondent, will therefore fall to be assessed on the same
facts and circumstances. That assessment, moreover, will apply equally to the
Applicant's allegation of the Respondent's unfair failure or refusal to renew or
extend his fixed-term contract essentially for the same discriminatory reasons.
36. The issue of unfair discrimination in the context of Item 2(1)(a), was addressed in
the recently reported judgment of Landman J, in Louw v Golden Arrow Bus
Services (Pty) Ltd (2000) 21 ILJ 188 (LC). The Applicant, Louw, contending
that a white male employee, purportedly of equal status, was earning a monthly
salary substantially in excess of that paid to him, instituted proceedings in the
Labour Court claiming that the company was discriminating against him, and
others in his position, on the basis of their race as contemplated by the definition
of a residual unfair labour practice in Item 2(1)(a) of Schedule 7 to the Act.
37. It was held that neither dolus nor culpa need be proved to establish the existence
of unfair discrimination and that the statute created "a form of strict liability",
whether or not the conduct in question was "accompanied by intention,
negligence and motive."
38. Citing the Constitutional Court decision in -
Harksen v Lane NO 1998 (1SA) 300 (CC) at 325A - D,
the Court referred to the initial question to be determined, namely whether the
Act or omission constituted differentiation between people or categories of
people.
"If the answer is positive, the court then embarks on a two-stage
analysis:-
(i) Firstly does the differentiation amount to 'discrimination'? If it is on a
specified ground, then the discrimination will have been established. If
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.
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(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 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."
39. The question whether or not the Applicant was unfairly discriminated against in
the context of that analysis, clearly necessitates a prior assessment of whether or
not he held a reasonable expectation of the renewal or extension of his fixed-term
contract, as opposed to one of permanent appointment. I am satisfied, on the
conspectus of the evidence in that regard, that such an expectation on his part
was both reasonable and justified. A number of factors bear on that conclusion.
40. The first is the wording of the advertisement to which the Applicant initially
responded - one inviting applications for a contract post for three years with a
possible extension to five years. It seems to me that the criteria governing that
possible extension, in the absence of any wording to the contrary, might
reasonably be inferred to be the standard of the incumbent's performance during
the initial three-year period, the need for the rendition of his academic services
for the extended period and the logistical ability of the institution to maintain the
post in question.
41. The second factor is the wording of the Applicant's letter of appointment. The
disclaimer, as I have stated, is one of "any commitment to a permanent
appointment on the University staff." The appointment is stated to be "for the
period specified" and that period is unconditionally stated to be three, and
possibly five, years. The Applicant believed that he would continue in the employ
possibly five, years. The Applicant believed that he would continue in the employ
of the University beyond the expiry date of his initial term, whether his continued
service was to be in the form of an extended fixed-term contract or of a
permanent appointment, an issue regarding which he acknowledges himself to
have been uncertain.
42. Such extension or renewal, the Applicant conceded however, could not "simply
happen." Something, he said, "would have to be done, a process would have to
be initiated by the Department in order to formalise that extension at least."
43. In the logistical context, he assumed that if the initial advertisement
contemplated a possible five-year fixed-term appointment, sufficient funds would
be committed for that purpose.
44. The Department's conduct towards him supported the existence of an
expectation of extension or renewal of his initial appointment. His work, in the
position held by him, was of the highest standard and acknowledged as such.
45. His colleague, Dr Naidoo, had held a similar expectation based, to all intents and
purposes, on discussions which he had had with the previous Head of
Department, Prof Bull, notwithstanding the Professor's denial, in the course of his
evidence, that he had given any indication to justify an expectation that a
contract appointment "had the characteristics of permanence."
46. He had been assimilated into the departmental and faculty structures in which he
played an integral role.
47. Prof K R Koch, an Associate Professor in the Department of Chemistry, held the
view that, if the incumbent in a contract post performed well, "there is the
possibility of confirmation of that period of (extended) time, although,
presumably, it was clearly understood that they are contract persons."
48. The issue of the possible conversion of the Applicant's contract lecturer post to
one of permanence had at least been mooted by a body known as the "Advisory
15
Working Group", albeit not pursued.
49. In short, Mr Janisch submitted, processes were in place to consider the Applicant's
claim to stay on after the three-year period. Finance was in principle available,
he was a valued member of staff whose standard of performance had never been
open to question, and in the result, other, extraneous reasons must have
motivated the decision to terminate his employment upon the expiry of the initial
three-year term. Those reasons, it was submitted, constituted unfair
discrimination against the Applicant in the context of that concept as reviewed
earlier in this judgment.
50. The evidence, Mr Janisch contended, clearly supports that contention. Three
employees, the Applicant, Dr Chibale and Dr Naidoo were initially appointed on
three-year fixed-term contracts. Each of them, at one time or another, conveyed
to the Respondent their wish for greater certainty regarding their employment
future at the University.
51. A recommendation was made in August 1997 for Dr Chibale to be interviewed for
a permanent post without advertisement.
52. In the face of an objection to that process by Dr Naidoo and concerns in that
regard on the part of the Applicant, the Respondent's Selection Committee
resolved that all three should have an equal opportunity to apply for the post in
question, which was accordingly advertised. This notwithstanding, the process to
appoint Drs Chibale and Naidoo without advertisement was pursued and
completed, the Applicant to all intents and purposes, being excluded therefrom.
53. The only reason to be deduced from the differential treatment of Drs Naidoo and
Chibale on the one hand and of the Applicant on the other, it was submitted, was
accordingly a racial one, the others having been appointed because they were
black and the Applicant having been excluded because he was not. Indeed, the
Applicant contends, the Respondent concedes on the pleadings that Drs Chibale
and Naidoo were appointed "pursuant to" the Respondent's Employment Equity
Policy, whereas the Applicant did not qualify for such an appointment. The
Respondent's submission that Dr Chibale's appointment was one on merit is
incidental to the issue in the face of its acknowledgment that it was also an
Employment Equity decision and irrespective of his academic capabilities, his
race was the defining criterion.
54. Dr Naidoo's final appointment to the University's permanent staff without
advertisement was conceded by the Respondent to have been similarly
motivated, and vis-a-vis the Applicant therefore, the tests defined in Harksen &
Lane NO (supra), to establish a presumption of unfair discrimination, are satisfied.
55. THE RESPONDENT'S REPLY ON THE ISSUE OF DISCRIMINATION
There was no vacancy, the Respondent states, for a Senior Lecturer following the
expiration of the Applicant's initial three-year term of contract employment. The
reason for the Applicant's failure to be appointed to the more junior position of
Lecturer for which he applied in September 1997 was unrelated to any aspect of
or factor in the appointments of Drs Chibale and Naidoo to the permanent staff.
He simply did not qualify for that appointment in the context that he had not
made himself indispensable to the Department. The Faculty Selection Committee
in considering the Applicant's qualifications for appointment to that position,
considered him unsuitable for reasons entirely unrelated to his race or gender.
Finally, if this Court were to find that discriminatory factors were applied in the
respective treatment of Drs Chibale and Naidoo on the one hand and of the
Applicant on the other, that discrimination, in the context of the University's Equal
Opportunity Policy, was not unfair.
56. I am left in little doubt, in the circumstances prevailing at the time, that the
56. I am left in little doubt, in the circumstances prevailing at the time, that the
Applicant's treatment, with its adverse consequences, was significantly different
from that to which his two black colleagues were subjected and I turn now to the
17
question of whether that discrimination was unfair, either in the context of the
allegation of automatically unfair dismissal in terms of s187 of the Act or of an
unfair labour practice as defined in Item 2(1)(a) of Schedule 7.
57. The Respondent is committed, it submits, to policies of equal opportunity and
affirmative action which are essential to its mission of promoting critical enquiry
and scholarship. Inherent in, and not independent of that policy is the need to
appoint the best persons available to the positions concerned, persons who, "over
a period of time and in the context of their particular posts, will make the greatest
contribution to the work and the reputation of the University." Merit, as a factor
in that assessment, is not independent of the context and, as stated in the Policy,
acknowledging the importance of role-modelling in a changing student body, the
University "will seek to appoint as many South Africans as possible to its
academic and administrative staff." In the context however of its further
commitment to "help overcome imbalances created by this country's legacy of
discriminatory practices," the University "will make conscious efforts to equalise
the access which women and black persons have to posts on its staff
establishments, such access to be based on merit."
58. THE APPLICANT'S SUBMISSIONS ON THE ISSUE OF UNFAIR
DISCRIMINATION
The Applicant alleges or infers that the appointment of Drs Chibale and Naidoo to
permanent positions when he was not so appointed, constitutes unfair
discrimination against him. This contention cannot be sustained to support an
allegation of automatically unfair dismissal where no reasonable expectation of
such permanent appointment existed and if, as I have found to be the case, the
Applicant could not legitimately have held such an expectation, what happened to
his colleagues is of no relevance to this issue. A finding of automatically unfair
his colleagues is of no relevance to this issue. A finding of automatically unfair
dismissal can only be based therefore on the Respondent's failure, in the face of
what I have found to be the Applicant's reasonable expectation that it would do
so, to renew or extend his fixed-term contract for one or more of the reasons
defined in s187(1)(f) of the Act. The reason in his case, the Applicant contends,
was his race. Discrimination against him on the basis of his race however, can
only be established where other persons of a different race are differently treated
in comparison. It is not disputed by the Applicant that the positions to which each
of Drs Naidoo and Chibale were respectively appointed, were not the lectureship
position advertised by the Respondent in August 1997 and unsuccessfully applied
for by the Applicant in September of that year. It is however apparent from the
Selection Committee minute of the meeting at which applications for that position
were considered, that none of the criteria detailed in s187 in any way influenced
the decision of the Committee that the Applicant was not appointable to the
position in question.
59. In the context that the fixed-term contracts of neither Dr Chibale nor Dr Naidoo
were renewed or extended but that, whether or not they were entitled to hold
reasonable expectations of permanent appointment (which, had it been relevant,
I would similarly have held not to have been the case), they were so appointed,
there exists once again no basis to justify a finding by this Court that the
Respondent's failure to renew or extend the Applicant's contract constituted
unfair discrimination on any of the grounds defined in s187(1)(f) or an unfair
labour practice involving unfair discrimination as set out in Item 2(1)(a) of
Schedule 7 to the Act.
60. Whilst the Respondent's Equal Opportunity Employment Policy may to a greater
or lesser degree have been a factor in the appointment of Drs Naidoo and Chibale
therefore, it was not, in my view, a factor in the non-appointment of the Applicant
to a permanent position nor in the failure of the Respondent to renew or extend
his fixed-term contract.
his fixed-term contract.
61. Notwithstanding Dr Chibale's chagrin at the suggestion that this was in fact the
case, the application by the Respondent of its Equal Opportunity Employment
19
Policy as a factor in his permanent appointment and that of Dr Naidoo, is
acknowledged by the Respondent. In the context of its stated principles and
objectives, that Policy, the Respondent contends, is not applicable to the
Applicant and the manner and circumstances of its application in the
appointments of his two black colleagues, did not, the Respondent submits,
constitute unfair discrimination against the Applicant, whether direct or indirect.
Whilst their race was admittedly a factor in the permanent appointments of Drs
Chibale and Naidoo, the fact that the Applicant is white, and would not in those
circumstances "qualify" for special consideration in terms of the Policy, played no
part in the decision not to extend his contract or appoint him permanently.
62. The concept of reasonable expectation is of course unrelated to any
determination of unfair labour practice as defined in Item 2(1)(a) of Schedule 7 to
the Act and the question which remains for determination in that context is
whether, as alleged by the Applicant in his amended Statement of Claim and as
defined for decision in the minute of their pre-trial conference tabled by the
parties, the Respondent's conduct in its selective application of the Policy
amounted to an unfair labour practice as contemplated in the Schedule.
63. Mr Janisch. in developing this argument, embarked upon an exhaustive dissection
of the Respondent's Equity Policy, emphasising the contention that the
discrimination provided for in Item 2(2)(b) of Schedule 7 to the Act, namely that
constituted by -
"..................policies and practices that are designed to achieve the
adequate protection and advancement of persons or groups or
categories of persons disadvantaged by unfair discrimination ..............."
will be unfair if the affirmative action which implements it is applied "randomly,
will be unfair if the affirmative action which implements it is applied "randomly,
arbitrarily, haphazardly and on an ad hoc basis. A degree of certainty, objectivity
and transparency, he submitted, must exist to justify discrimination on that basis.
The manner in which the Policy was applied in the appointments of Drs Naidoo
and Chibale, a process in the course of which prescribed requirements and
recognised procedures were either by-passed or disregarded, did not meet those
criteria.
64. The Policy, in its preamble, is unequivocal in its main purpose which is expressed
as -
"............ a commitment to help overcome imbalances created by this
country's legacy of discriminatory practices, and (to) make conscious
efforts to equalise the access which women and black persons have to
posts on its staff establishments, such access to be based on merit."
65. Appointments in that context, will be, in every case, of the person "who can be
expected to make the greatest contribution to the work and reputation of the
University" and in essence, selections of persons to be appointed on merit to
academic and administrative posts will be made with careful consideration of "the
implications of an Equal Opportunity Employment Policy."
66. I am left in no doubt, from the evidence and documentation presented in this
matter that, irrespective of their race, neither Dr Naidoo nor Dr Chibale would
have been appointed to the permanent positions which they now occupy, had
they not been considered academically competent, qualified and suitable to fill
them. I am not persuaded, on the basis of that evidence, that the Applicant was
better qualified than either of them. On the contrary, the minutes of the various
meetings of the Selection Committee and other relevant groups involved in the
process, clearly indicate that his qualifications in that context were responsibly
weighed and found wanting.
67. As far as the Respondent was concerned therefore, the basic requirements and
objectives of the Policy, as it interpreted them, were therefore satisfied in both
material respects. Two persons were appointed who, historically, would in the
Respondent's perception, have been disqualified by the "country's legacy of
discriminatory practices" and who, objectively, were moreover considered to be
21
"the best persons for the job." Those appointments, and the application of the
Policy in terms of which they were made, cannot therefore be said to have been
made randomly, arbitrarily, or haphazardly, as the Applicant infers and I can find
no basis in fact or in law to support the contention that they constituted unfair
discrimination against him in the context of the statutory provision upon which he
relies in that regard.
68. The Applicant makes two further submissions. In the first instance, he contends,
Dr Chibale is a non-South African and the application by the Respondent of its
Equal Opportunity Employment Policy to persons who are not South African
citizens is unfair. The unfair labour practice directly affecting him in that context,
he submits, is constituted by the appointment by the Respondent of a non-South
African citizen to a position which the Applicant is qualified to occupy and had
occupied during the subsistence of his fixed-term contract.
69. This argument is premised on the submission that the Policy, by its own
definition, should apply only to previously disadvantaged South African citizens as
so characterised by the Constitution and the Act. The "legacy of discriminatory
practices" which it is designed to address are those of "this country" and the
Policy is directed towards the development of the careers of blacks and women
and "the pool of available South African talent." The imbalances which it seeks to
address are, the Applicant states, South African imbalances and the concept of
affirmative action envisaged by the Constitution and the Act is one developed
against the background of South Africa's discriminatory history. The only persons
to whom it should legitimately and fairly be directed therefore, are persons
previously and directly disadvantaged by unfair discrimination in the South
African context. Such persons will constitute the group of "target beneficiaries"
African context. Such persons will constitute the group of "target beneficiaries"
to whom the concept is directed and if it is to be fairly applied and implemented,
will be confined to South African blacks and South African women. Nationality is
therefore an essential and legitimate limiting criterion.
70. I have been unable, as appears to have been the case with Counsel, to find any
authority or pronouncement on this issue in South African employment law
jurisprudence. The contention however would seem, to my mind, to have merit.
The "legitimate beneficiaries of affirmative action are ............. those who have
been disadvantaged by measures which impair their fundamental human dignity
or adversely affect them in a comparably serious way."
Kentridge J in Chaskalson (ed): Constitutional Law of South Africa at 14 -
38.
71. Whilst there is case authority to the effect that, in labour-related cases, such
beneficiaries must be able to show that they had been actually disadvantaged,
academic opinion is that the term "disadvantaged" must not be so narrowly
interpreted as to require that each potential beneficiary must show that he or she
was actually disadvantaged. What is necessary however, is that they should be
members of groups that "have been disadvantaged by general societal
discrimination, whether direct or indirect."
Kentridge (supra): 14 to 39.
72. There is no basis upon which Dr Chibale can qualify as a member of such a group
or, in that context, upon which, directly or indirectly he can be deemed, actually
or potentially, to have been disadvantaged by general societal discrimination. He
cannot therefore in my opinion, legitimately be said to fall within the category of
persons to whom the Policy in question is directed and in that context, the
affirmative action which the Policy embraces is inapplicable to him. The fact that,
in that context the University incorrectly, but patently in good faith, so applied it,
cannot in my view, constitute what is in all respects a commendable statement of
principle and intent, per se an unfair labour practice as the Applicant contends.
Indeed, no submissions of material relevance were directed to me to support that
contention.
73. The unfair discrimination of which the Applicant complains in that regard
73. The unfair discrimination of which the Applicant complains in that regard
however, is constituted by the appointment of a non-South African citizen to a
23
position which he, the Applicant, is qualified to occupy. The only inference validly
to be drawn from that submission is that if Dr Chibale had not been so appointed
for the reason that he is not a South African citizen and was therefore not entitled
to benefit in terms of the Policy, the Applicant, a South African citizen and
allegedly qualified in every other respect, would have been so appointed. That
assumption is however without foundation. Whilst the Respondent, clearly
perceiving it legitimate to do so, makes reference to the Policy as a factor in Dr
Chibale's appointment, it was clearly not the overriding consideration motivating
it. I have already made reference to Dr Chibale's angry repudiation of that
suggested criterion and there can be little doubt that both in his own perception
and that of the Selection Committee, he was the person who, in the words of the
Policy, could be expected to make the greatest contribution to the work and
reputation of the University in the position to which he was appointed.
74. For these reasons, I find that the allegation by the Applicant of unfair
discrimination against him in this specific context is unfounded.
75. The Respondent's contention that the Applicant was not dismissed cannot, as I
have indicated, be sustained in the light of my finding that the Applicant had a
reasonable expectation of the renewal or extension of his fixed-term contract as
opposed to any expectation of permanent appointment. As a final alternative to
his earlier alternative claims of automatically unfair dismissal or unfair labour
practice as a consequence of direct or indirect racial discrimination, the Applicant
pleads that his employment was terminated for operational reasons with regard
to which the Respondent failed to follow due prescribed procedures. Significantly,
in that regard, the Applicant does not allege that his dismissal in those
circumstances was substantively unfair.
circumstances was substantively unfair.
76. In his closing submissions to me, Mr Nieuwoudt submits that if the finding of this
Court is that the Applicant was in fact dismissed, that dismissal can only have
been on the grounds of operational requirements and the Respondent concedes,
he stated, that if that is indeed found to have been the case, the dismissal was
procedurally unfair for the reasons alleged by the Applicant.
77. It does not seem to me that this aspect of the matter needs, in these
circumstances, to be taken further. I have, for the reasons which I have stated,
concluded that the Applicant was in fact dismissed. In the absence, as I have
found to be the case, of any material aspect of the unfairness alleged by the
Applicant to have primarily characterised that dismissal, the Applicant submits,
and the Respondent acknowledges, that it can only have been on operational
grounds. Its substantive justification in that regard is not challenged by the
Applicant and the Respondent's failure to follow due procedure is conceded by
the Respondent.
78. The Applicant's entitlement to compensation in these circumstances was
comprehensively examined and reviewed by the Labour Appeal Court in -
Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89.
Dealing with the provisions of s193 and s194 of the Act, the Court, at page 99,
said this:
"If a dismissal is found to be unfair solely for want of compliance with the proper procedure
the Labour Court, or an arbitrator appointed under the LRA, thus has a discretion whether to
award compensation or not. If compensation is awarded it must be in accordance with the
formula set out in s194(1); nothing more, nothing less. The discretion not to award
compensation in particular cases must, of course, be exercised judicially."
The judgment, at page 100, continues:
"The compensation for the wrong in failing to give effect to an employee's right to a fair
procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the
loss of the right, and is punitive to the extent that an employer (who breached that right)
must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by
must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by
one person to another deserves some form of redress. The party who committed the wrong is
usually not allowed to benefit from external factors which might have ameliorated the wrong
in some way or another............ The nature of an employee's right to compensation under
s194(1) also implies that the discretion not to award that compensation may be exercised in
circumstances where the employer has already provided the employee with substantially the
same kind of redress (always taking into account the provisions of s194(1)), or where the
employer's ability and willingness to make that redress is frustrated by the conduct of the
employee."
79. In -
25
Whall v Brandadd Marketing (Pty) Ltd (1999) 20 ILJ 1314 (LC) at 1323
Grogan AJ commenting on that dictum said the following:
"I do not understand the Labour Appeal Court to have intended to
suggest that the two examples it provides of cases in which
compensation may be refused are exhaustive. To refuse compensation
on the ground, for example, that the employee immediately obtained
alternative employment at a salary higher than he was previously
earning would, in my view, be consistent with the examples provided by
Froneman DJP."
80. I am respectfully unable to agree with that view which appears to me to be in
direct contradiction of the Labour Appeal Court's determination that patrimonial
or actual loss is not a factor to be taken into account in the exercise of the Court's
discretion whether or not to award compensation where a fair procedure has not
been followed. Whilst, as Grogan AJ states, the examples given in Johnson may
not be exhaustive, the example which he himself propounds as being consistent
with the circumstances contemplated by the Labour Appeal Court, is in fact one
based on the absence of patrimonial loss and is in fact expressly excluded from
the criteria which the Court, in the exercise of its discretion, may validly take into
account.
81. The Respondent's contention, which the Applicant acknowledges, that he did not
suffer patrimonial loss is therefore irrelevant as is, in my opinion, the further
submission that the Respondent acted at all times in a bona fide manner. The
absence of mala fides on the part of an employer who disregards fair and
prescribed procedures will not absolve him from the compensatory consequences
of his conduct.
82. There is a plethora of authority to the effect that the limitation to the equivalent
of 12 months remuneration prescribed in s194(2), relating to substantively unfair
dismissal, is equally applicable to that which will be payable in terms of s194(1),
where the period between the date of the employee's dismissal and the last day
of the hearing of the arbitration or adjudication, exceeds that period. That is the
position in this matter and the compensation to which I hold that the Applicant is
entitled must therefore be calculated on that basis.
83. The issue of costs in this matter must, in my view, have appropriate regard to the
extent to which the Applicant has succeeded in his claims. His primary
contentions in that regard related to an allegation of unfair dismissal and unfair
labour practice. It was the development of those contentions and the
Respondent's challenge thereto which absorbed by far the greater portion of the
evidence and argument presented in the course of this trial. The issue of
operational necessity, substantively uncontested in the end result, was dealt with
in a relatively minor context.
84. For that reason, it does not seem to me to be equitable that the Respondent be
required to bear any portion of the Applicant's costs and I accordingly make the
following order:
84.1. The dismissal of the Applicant was unfair for want of compliance with a fair
procedure.
84.2 The Respondent is to pay to the Applicant within fourteen (14) days
of the date of this judgment, compensation equivalent to 12 months
remuneration calculated at the Applicant's rate of remuneration on the date of
the termination of his employment.
84.3 There is no order as to costs.
ÄÄÄÄÄÄÄÄÄÄÄÄ
B M JAMMY
ACTING JUDGE OF THE LABOUR COURT
27
5 May 2000