INTHE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case
No: JS 1480/01
In the matter between
YVETTE BIGGS Applicant
and
RAND WATER Respondent
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REASONS FOR JUDGMENT
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REVELAS, J. The applicant, Yvette Biggs, a white woman in her
twenties, had been employed by the respondent as a Water Quantity
Administrator at its Head Office in Glenvista since 12 September
2000. Her position was not permanent and her employment contract
was renewed from time to time.
During May 2001 the position of the applicant’s became permanent
and she applied for that position. In other words, she applied for her
own post of Water Quality Administrator which she had filled for
almost a year.
On 12 September 2001 she was notified that her application was
unsuccessful. The person who successfully applied for the position of
Water Quality Administrator was a black woman who was an existing
employee of the respondent, and employed in a different department.
The applicant’s case is that she was automatically unfairly dismissed
in terms of section 187(f) of the Labour Relations Act 66 of 1995 (the
LRA) and Section 6 of the Employment Equity Act 55 of 1998 (the
EEA) in that she was unfairly discriminated against by the respondent
on the basis of her race. The relief she seeks is compensation.
The respondent had an affirmative action policy in place and in terms
of it the affirmative action process applied to “all women” and
according to the applicant she fell within a designated group and the
policy equally applied to her.
The respondent’s case is firstly, that the employment contract between
itself and the applicant, had come to an end by agreement. The
contract signed with the Scientific Services Department of the
respondent recorded that her employment would terminate from 18
October 2000. Thereafter until the post became permanent the
applicant’s contract was extended on a monthly basis so that she could
assist with the “backlog in administrative work”.
It was common cause between the parties that the applicant was
dilligent, competent and a great asset in the department where she
worked.
The respondent’s case is secondly, that in certain respects the black
woman Ms Mahlala was more suitable for the position as she had an
“N5 certification” and the applicant only had matric. Further, since
the demographics of the relevant band within the department reflected
that mostly white women were employed, it was fair to appoint Ms
Thlaleng Mahlala to the position.
The Respondent in its answer to the applicant’s statement of case,
stated that the reason for not appointing the applicant was due to the
application and employment equity endeavours. It stated that it had
sought to appoint a person competent to perform in the position while
taking into consideration the spirit of the EEA. In paragraph 19 of its
response the respondent “denies that the Applicant was the best
candidate” and suggested that she and Ms Mahlala were equally
competent but stated that they do not have the “same qualifications,
skills and experience.”
The evidence lead by the applicant and her witnesses and which was
not dented by the crossexamination, strongly suggests that the
applicant had a legitimate expectation to be appointed and therefore
established a dismissal for the purposes of section 186(b) of the LRA.
During the ten month period when the applicant worked in terms of
the several fixed term contracts which were extended continuously,
she underwent training and induction. She was supported in these
endeavours by her line manager, Ms Anne Vincente who also gave
evidence at the trial. She was called by the respondent. According to
Mrs Vincente’s evidence, she recommended to the panel that the
applicant be appointed because the applicant introduced systems and
procedures as a water quality assistant to the extent that she came
inexpendable.
I gained the very strong impression that the applicant changed the
functional content of her position into one which was quite different
and more effective than it was when she was appointed. Ms
Vincente’s evidence was that through her good performance, the
applicant created systems and procedures to such an extent that the
respondent identified an absolute need for the creation of the
permanent position. The respondent’s contentions that she mainly
assisted with the backlog (the respondent’s statement of case) is
completely incorrect.
Plainly, the applicant discharged the arms of proving that her services
were terminated. Based on all the facts and the continuous extensions
of her contract she had a legitimate expectation that a proper and fair
process would be followed and fair criteria be applied when she
applied for the existing post she had already manned so very
competently. Her superiors ensured her that she was by far the best
candidate. The respondent’s denial of this fact is facile as Ms
Vincente’s evidence confirmed the evidence of the applicant in this
regard.
Dr Kassan, the respondent’s General Manager, explained that he was
compelled to employ Ms Mahlala despite the interviewing
committee’s recommendation that the applicant should be appointed.
The compelling factor he says he was obliged to take into account
was the following sequential racial prefence:
1.
Black females
2. Black males
3. Indians
4. Coloureds
5. People with disabilities
6. White females
It appears that white males are completely out of the question as they
were not mentioned. According to Dr Kassan the demographics
indicated that too many white females were appointed.
Ms Vincente confirmed that she and Mr Lubout, as line managers,
were responsible for the implementation of the respondents
affirmative action policies and they were members of the interviewing
panel. Dr Hassan overruled the interviewing panel’s recommendation
that the panel appoint the applicant, without even meeting her or Ms
Mahlala or the other candidate and without weighing up various other
factors. Important considerations were the candidates qualifications
and experience. The fact that the applicant would become
unemployed due to his decision and Ms Mahlala already had a
position with the respondent when she applied, should also have been
considered.
The written motivation memo of the interviewing panel had gone
missing and could not be found despite dilligent searches. This was
according to the respondent’s legal advisor who was called by the
respondent to testify.
According to the Respondent’s Equity consultant, the targets for
appointing designated group of employees had not yet been reached.
The need for racial transformation in this country and the objects and
aims of the EEA is trite and need not be set out in any detail in this
judgment.
The applicant was treated unfairly in more than one way. Section
186(b) was included in the LRA to prevent the unfair practice of
keeping an employee in a position on a temporary basis without
employment security until it suits the employer to dismiss such an
employee without the unpleasant obligations imposed on employers
by the LRA in respect of permanent employees. The applicant’s
situation fell squarely with the purview of section 186(b). In this
context, Ms Mahlala who already had a job, gained another at the
expense of the applicant.
The respondent did not furnish a written policy to support its view that
it is entitled to discriminate between black and white females. The
applicant’s case is that no provision existed for the preferential
treatment between members of a designated groupin this case,
femaleswithin the respondent or the EEA. The applicant also made
the point, and correctly so, that Dr Kassan’s classification and
considerations were not supported by any collective agreement or
policy document. No documentation as to Ms Mahlala’s
qualifications were produced.
In my view Dr Kassan’s conduct in overruling the panel’s
recommendation without even meeting any of the candidates was so
arrogant that it could not justify the discrimination which he
implemented. The other employee shortlisted was Indian, according
to Ms Vincente.
Basically the respondent’s case was that it indeed discriminated
against the applicant, but was legally entitled to do so, because it had
done so fairly. This was of course not its case initially. Then it had
been that Ms Mahlala was more suitable and qualified for the position.
The respondent used the applicant’s skills, initiative, templates and
other methods with which she created a fine post, only to put her out
on the street and replace her with a person Dr Kassan did not even
interview. He acted solely upon the names and race of the persons
involved. Such conduct is rationally not capable of being construed as
fair discrimination. If Dr Kassan’s method of appointing employees is
to be accepted as fair then the applicant should have been advised not
to apply or the advertisement in question should have stated that
whites and indians need not apply for the position. In fact, the
applicant should have been dismissed long ago.
The applicant was turned down only because of her race in a process
which was devoid of any fairness or foundation in the respondent’s
policies. The respondent failed to justify the discrimination against
the applicant in terms of Section 2(2)(b) of Schedule 7 of the LRA.
The applicant sought compensation. To award her the maximum
compensation, namely an amount equal to 24 months’ remuneration
would not be realistic, since the applicant was only appointed for ten
months.
In the circumstances I awarded the applicant 10 months’
remuneration, and costs against the respondent.
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E.
Revelas
Date of hearing: 24 October 2002
Date of judgment: 11 December 2002
For the applicant: Mr W. G. Jonker
For the respondent: Mr van As