IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO P299/99
In the matter between:
NONDUMISO MAHLANYANA Applicant
and
CADBURY (PTY) LTD Respondent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
1. The Applicant in this matter, alleging that her failure to be appointed to fill a
vacancy which existed within the Respondent company for a Factory
Accountant was a consequence of racial discrimination against her,
constituting an unfair labour practice as contemplated in Schedule 7, s2(1)(a)
of the Labour Relations Act 1995, seeks relief from this Court which, in her
Statement of Claim, she describes in the following terms:
"1. To be appointed as factory accountant: alternatively
2. The position of Factory Accountant to be declared null and void and
re-advertised de novo."
2. Implicit in the second of those two claims is the requirement that the
appointment by the Respondent of the person or persons identified for the
position in question, be set aside.
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3. Notwithstanding this litigation, and as is apparent from the result which she
seeks, the Applicant is still in the employ of the Respondent. She has worked
there as a Cost Analyst since 1993, prior to which she was employed by
another company in a position which she described in her curriculum vitae as
"Credit Controller" but which she conceded in the course of her testimony
could more accurately be defined as a Debtors' Clerk.
4. On or about 11 March 1999, she testified, she learned that at a production
meeting, at which she was not personally present, an announcement had been
made by Mr Mark Taunton, the Manufacturing Finance Controller in the
company, that two of her white colleagues, Ms Jeanette McNaughton and Mr
Winton Frost, had been appointed Factory Accountants in the context of a
restructuring and development programme within the company which was
then being put into effect and that a third appointment, of an "outsider" not yet
in the employ of the company, was also to be made in a similar position. She
was at no time informed or consulted directly by the Respondent's
management on any aspect of these appointments or the restructuring
necessitating them.
5. Aggrieved at these developments, the Applicant testified, she approached Mr
Taunton with a request that he inform her of details of the restructuring and
the appointments made pursuant thereto and eventually, in a meeting with
him on 15 March 2000, he informed her that the restructuring had become
necessary because of past losses, and the building of a new plant at Olympus.
He confirmed that Mr Frost, and Ms McNaughton, the latter on probation, had
been appointed as Factory Accountants and that a third appointment, of
certain Mr Steve Volker, was to be made thereafter.
6. According to the company's recruitment policy however, everyone must be
given an opportunity to apply for vacancies which occurred in the company and
given an opportunity to apply for vacancies which occurred in the company and
she, the Applicant stated, was given no such opportunity. She had been a Cost
Analyst for seven years, six of them in practical work and a seventh in study,
and considered herself qualified for the position in question. She accordingly
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decided to lodge a formal grievance with the Managing Director of the
company, which was copied to Mr Taunton on 16 March 1999. In the course of
their earlier discussion Mr Taunton had informed her that she would be
appointed as assistant to the three Factory Accountants. She was not qualified
for those appointments because she needed further training, he had said, but
she disputed this. She had, she stated in the grievance document, "been doing
the job for six years and therefore I do not need training." When she requested
that she be given a fair chance to fill the positions, Mr Taunton had responded
that she must first prove herself as an assistant. She questioned Mr Taunton's
assessment of her capabilities in the context that he was "new with the
company and never gave himself a chance to know me better." Not once in
the three months of his employment in that position, had he ever discussed her
job or other related issues with her. The grievance concluded as follows:
"Lastly, after telling Mark of this unfair treatment, he told me that I
am open to apply for this position if I wished to. My questions are,
why should I apply? Did my colleagues apply? Was the position
advertised on the notice boards? Is restructuring not meaning that
the people involved must be consulted? This never happened to me."
7. No resolution of her grievance within the three-day period prescribed for that
purpose in the company's grievance procedure resulted, the Applicant
continued, and on 24 March 1999 she addressed a further memorandum to
management, describing that state of affairs as a "residual unfair labour
practice in terms of the Labour Relations Act" and recording that she felt
"discriminated against on the basis of my race." She had no alternative, she
stated, but to refer the dispute to the CCMA and this she formally did on 26
March, defining her complaint as an unfair labour practice arising from the fact,
March, defining her complaint as an unfair labour practice arising from the fact,
as therein described, that "my colleagues were appointed as Factory
Accountants, whereas I was appointed as an Assistant Factory Accountant" and
listing one of a number of special features as discrimination against her "on the
basis of my race."
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8. At least one aspect of the Applicant's grievance resulted in a response from the
Respondent. Its management was advised by its Human Resources
Department that in order for appointments to be made to the positions in
question they had first to be advertised internally, with any applicants to be
interviewed in the context of a selection process before final appointments
were made.
9. On 19 March therefore, the vacant Factory Accountant posts which had been
the subject of the earlier informal appointments were now formally advertised
and displayed on internal notice boards. Applicants were invited to submit
their curriculae vitae to the Human Resources Department by 26 March 1999.
Applications were received from the Applicant, Winton Frost and Jeanette
McNaughton.
10. Testifying for the Respondent, Mr Taunton explained that during the week
following 26 March 1999 the three candidates for the position were interviewed
both by himself and by Mr Andre Van Tonder, the Site General Manager. The
structure of each interview and the questions presented in each case were
identical and designed, he stated, to establish the applicants' suitability and
experience level measured over six key areas, with a scoring table devised and
applied to each.
11. Winton Frost, said Mr Taunton, was so clearly superior to the other two
candidates that his appointment was, in effect, a foregone conclusion. I do not
intend, in the context of this judgment, to review the detailed analysis by Mr
Taunton of the comparative assessment of each of the key areas as between
Ms McNaughton and the Applicant. Suffice it to say that in the end result, the
former outscored the latter by a significant 52 points. The identification of the
key indicators and the strengths and weaknesses of the respective candidates
which they illustrated, Mr Taunton testified, was designed to, and did, remove
which they illustrated, Mr Taunton testified, was designed to, and did, remove
any possible bias in the evaluation process which, in consequence, was
scrupulously fair and objective in all respects.
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12. In the result Frost and Ms McNaughton, together with an outside appointee,
Volker, who possessed particular expertise in the specific field of computerised
accounting, were appointed to fill the three vacancies. It is common cause that
shortly thereafter Ms McNaughton resigned for what Mr Taunton described as
personal reasons and that her position was re-advertised internally within the
company with a request to applicants to submit their CV's by 10 June 1999. It
is not disputed that the Applicant has not done so, notwithstanding that the
vacant position is similar in all respects to that for which she initially
unsuccessfully applied.
13. The Applicant contends that at no time has she ever been formally advised
that her initial application in response to the March 1999 advertisement was
unsuccessful. That is her explanation for not having applied for the current
position. This evidence was disputed by Mr Taunton, who testified that shortly
after the interviews had been conducted, he met individually with all three
candidates and advised them of the result. He specifically informed the
Applicant, he said, that her application was unsuccessful, specifically because
of her lack of adequate experience - an advertised prerequisite for the position.
14. He proposed to her that she should be appointed an Assistant Factory
Accountant, a position which he would specifically create for her in order to
expose her to the relevant methodology and techniques with a view to gaining
experience in factory accountancy. That position would have been senior to
the position currently held by her with a higher remuneration package but the
suggestion was rejected out of hand by the Applicant who informed him that
she was not prepared to "run around" as a junior to the others. The discussion
was a positive one, he said. He advised her not to be too hasty and to
establish "foundations and stepping stones." She had seemed relaxed and
establish "foundations and stepping stones." She had seemed relaxed and
they parted on good terms. His perception was that she accepted the position
and that the issue had become "defused."
15. The Applicant's testimony that he developed a negative attitude towards her
was without foundation, said Mr Taunton, and in fact, positive steps had been
pursued to enable her to advance in her career with the company. The
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opportunity to attend a management course had been presented to her but
could not as yet be implemented as a consequence of operational pressures.
That opportunity remains however and she will be sent on a course as soon as
practicably possible.
16. There can be little doubt that notwithstanding the emotional groundswell of
genuine commitment, following the advent of the new South African
democratic era some six years ago, to the eradication of historical prejudices
and discrimination based on race, residual pockets of racism remain manifestly
in existence in this country. The bitterness and sensitivity of persons
historically and, directly or indirectly, still subjected to those prejudices is
therefore understandable. Where perceptions of their existence are shown to
to have been justified, it is right and proper that, wherever and whenever they
are established, mechanisms should exist to address them remedially,
therapeutically, and where appropriate in the context of their social and legal
unacceptability, even punitively.
17. Correlative to that concept however, is the necessity for responsible avoidance
of a hypersensitive inclination or tendency in adverse circumstances, to
classify as racial discrimination otherwise unimpeachable conduct by members
of one race towards those of another where no rational basis for doing so
exists.
18. The Applicant in this matter, presents as an educated and intelligent person,
confident of her own ability and ambitious in her career objectives. Those are
commendable qualities and her resentment and disappointment at the
irresponsible and ill-considered manner in which the issue of the appointment
of Factory Accountants within the company was initially addressed, was to my
mind understandable. I am left in no doubt, from the evidence on that issue,
that Mr Frost and Ms McNaughton were perceived by Mr Taunton and his fellow
that Mr Frost and Ms McNaughton were perceived by Mr Taunton and his fellow
managers as the right persons for the jobs in question from the outset. The
defects in the procedures then followed however, do not render that perception
unjustified but this notwithstanding, those defects were acknowledged, the
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informal appointments were withdrawn and proper procedures were put in
place to regulate the position.
19. Mr Taunton, to my mind, was in that context a responsible and credible witness
and I am left in no doubt that the basis upon which the subsequent
advertisement, interview and selection process was conducted by him, was
designed to identify the best candidates for the job, whether or not it proved to
be an endorsement of his initial evaluation in that context.
19. His technical analysis of that process was an emphatic one and was not
challenged on any rational grounds. That the Applicant, in the
absence of any pragmatic basis for doing so, has sought to base that challenge
on purportedly racial criteria, whilst perhaps understandable in an emotional
context, is in my view unjustified and unfounded on
the basis of the evidence before me. Apart from his allocation of scores to
each key indicator in the process, she conceded, she was happy with Mr
Taunton's interview. She could not comment on the fact that a person of
colour had been offered the vacant position occasioned by Ms McNaughton's
departure but had accepted a better offer. She could not dispute that Ms
McNaughton's interview had been conducted on exactly the same basis as her
own. All she could do was to persist in her contention that the issue had been
prejudged and that Mr Taunton was inherently biased.
21. A further and final significant factor in this assessment, it seems to me, is that
at no stage in the prior history of her relationship with the Respondent had the
Applicant ever raised issues of racial discrimination or indicated any grievance
in that context. She is, moreover, still in the Respondent's employ, thereby
maintaining by her own volition, a relationship which, if her contention that she
is the victim of racial discrimination is valid, one would expect that she would
find untenable.
find untenable.
21. For all of these reasons I have concluded, on the conspectus of the evidence
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before me, that the Applicant has failed to discharge her acknowledged onus to
establish the discrimination which she alleges and that she has not been
subjected to any practice on the part of the Respondent which, in the context
of Schedule 7 to the Labour Relations Act 1995, can validly be determined as
unfair. For those reasons the order that I make is that her application is
dismissed. I was informed at the conclusion of closing argument by the legal
representatives of the parties that neither of them sought an order for
costs against the other and accordingly no such order is made.
ÄÄÄÄÄÄÄÄÄÄÄÄ
B M JAMMY
Acting Judge of the Labour Court
21 July 2000
Representation:
For the Applicant: Mr N J Rhodè: Rhodè Attorneys
For the Respondent: Mr D Van der Merwe: White & Williams, Attorneys
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