I N T H E L A B O U R C O U R T O F S O U T H A F R I C A
H E L D A T C A P E T O W N
CASE NO: C222/2004
In the matter between:
DUDLEY CUPIDO Applicant
and
GLAXOSMITHKLINE SOUTH AFRICA (PTY) LTD Respondent
JUDGMENT
MURPHY, AJ
1. The applicant has brought suit alleging that he has been the victim of
racial discrimination in relation to his application for promotion. The
respondent has raised four objections in limine to the pleadings filed by the
applicant and seeks a ruling before proceeding further with the matter.
2. After a failed attempt at conciliation the CCMA issued a certificate of the
outcome on 17 February 2004 confirming that the dispute remained
unresolved at that date. In May 2004 the applicant filed a statement of
claim with the Labour Court in terms of rule 6 on a proforma form 2 in
which he purported to refer his dispute concerning discrimination for
adjudication in terms of the provisions of the Employment Equity Act of
1998.
3. Under paragraph 7 of the statement under the heading: “Statement of the
facts that will be relied on to establish the applicant’s claim” the applicant
wrote as follows:
1. Recruitment and selection practices have been an issue at GSK Epping Cape
Town for a long time.
2. The company’s own assessment and evaluation process was not followed.
3. The position of HR Manager was not advertised externally.
4. I am suitably qualified for the post in terms of section 20(3) of EE Act.
5. Company failed to review all the factors in terms of section 20(3).
6. Company’s understanding of operational requirements not same as LRA.
7. Company not meeting purpose of EE Act.
8. Company not implementing and interpreting EE Act correctly.
9. Company is indirectly unfairly discriminating against me as a black person.
10. Company is not following its own transformation policy and is not implementing
affirmative action correctly.
11. The unfair conduct of the employer, relating to promotion.
12. Skills development is almost nonexistent at the company, especially for senior
positions.
4. In paragraph 8 of the statement of case under the heading: “The legal
issues that arise from the above facts” the applicant stated as follows:
1. Company policy and practice.
2. Company policy and practice.
3. Company policy and practice.
4. Section 20(3)(4)(5) of Employment Equity Act.
5. Section 20(3) of Employment Equity Act.
6. Labour Relations Act section 213
7. Section 2 of Employment Equity Act.
8. Section 3(b) of Employment Equity Act.
9. Section 6(1) of Employment Equity Act.
10. Section 13(1)(2)(c)(d) and 15 of Employment Equity Act.
11. Schedule 7, Part B section 2 . 1(b) of LRA.
12. Section 2 Skills Development Act.
5. In paragraph 9 of the statement of case under the heading “relief sought”
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the applicant wrote:
1. To create a position to gain the relevant experience.
2. To compensate me equal to 12 months remuneration for the position as HR
Officer.
3. Legal costs, if applicable.
4. Appoint me to position of HR Officer.
6. On 31 st May 2004 the respondent responded to the statement of case in
terms of rule 6(3). In paragraph 4.1 of the response the respondent denied
that paragraph 7 of the statement of case contained a clear and concise
statement of material facts in chronological order as required in terms of
rule 6. The respondent therefore denied that the applicant’s allegations
were sufficiently particular to enable it to reply thereto and reserved all its
rights in that regard.
7. Despite the respondent’s obvious difficulty in trying to deal with the vague
and general allegations made by the applicant it nevertheless pleaded in
relation to them, putting up a substantial defence of its recruitment and
selection processes. It also furnished a copy of its employment equity plan
and denied that it had discriminated against the applicant in its
appointment of another person to the post of Human Resources Officer. In
its view the applicant is not suitably qualified for the post having regard to
his qualifications, skills, prior learning, experience and potential and further
does not satisfy the inherent requirements of the job as contemplated in
section 6(2)(b) of the Employment Equity Act. The successful appointee,
an external candidate, was a coloured female who complied with the
inherent requirements of the job, was basically better qualified than the
applicant, a coloured male, and considering her race and gender equally
advanced the employment equity profile of the respondent.
8. On 30 June 2004 the applicant purported to amend his statement of case
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by handing an amended statement to the respondent’s attorney at a pre
trial conference held on 30 June 2004. The respondent shortly thereafter
filed a notice of objection to the applicant’s amendment dated 7 July 2004.
9. The purported amendment seeks to expand on the original statement of
case in some detail. The respondent objects to the amendment on the
ground that the applicant failed to comply with the provisions of rule 28 of
the High Court Rules, which it suggests ought to have been followed in
accordance with provisions of rule 11 of the Labour Court Rules. In
particular the applicant failed to serve a notice of intention to amend and to
furnish the particulars of such amendment. He merely served a second
statement of case in terms of rule 6. The notice does not state that unless
written objection to the proposed amendment was made within 10 days of
delivery of the notice the amendment would be effected in accordance with
the provisions of rule 28(2). It is not apparent from the document served
upon the respondent’s attorneys whether the same substitutes the original
statement of case initially served upon the respondent in its entirety or
which portions of the initial statement of case are to be replaced or
ignored.
10. Regarding the substance of the amendment, the respondent objects that
the applicant is seeking to introduce a new cause of action in the form of a
direct right to affirmative action. I shall return to this objection more fully
later. Other provisions of the amendment were also challenged on the
grounds of vagueness to which I shall also return later.
11. Subsequent to this the applicant filed an application dated 16 July 2004 to
set down the matter for a pretrial conference before a judge in chambers.
This document runs into 12 pages of averments and annexures.
This document runs into 12 pages of averments and annexures.
12. Thereafter on 20 August 2004 the applicant gave notice of intention to
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apply to amend his statement of case in terms of rule 11 in various
respects, but has not as yet set it down for hearing. This document is also
lengthy.
13. From the pleadings as a whole it is apparent that the dispute is essentially
one arising under Chapter II of the Employment Equity Act . The applicant
alleges that he was discriminated against on the basis of race as a result
of the failure by the company to promote him to the position of Human
Resources Officer. To the extent that his various statements of case allege
unfair labour practices in regard to promotion such can be disposed of at
the outset. Section 191(5)(a)(v) of the Labour Relations Act provides that
disputes regarding unfair conduct in relation to promotion must be
arbitrated by the relevant bargaining council or the CCMA and hence the
Labour Court has no jurisdiction to decide these matters. The only causes
of action which are competent are those within the contemplation of the
Employment Equity Act.
14. In his original statement of case dated 13 May 2004 the applicant alleged
certain facts and legal issues that arise from the said facts upon which he
will rely to prove his claim. The paragraphs in question are paragraphs 7.4,
7.5, 7.7, 7.8, 7.10, 8.4, 8.5, 8.7, 8.8 and 8.10. The said facts and legal
issues relate to the alleged failure by the respondent to prepare and
implement an employment equity plan as required by section 20 and 36
and as such amount to allegations of a dispute concerning chapter III of
the Employment Equity Act. The respondent’s objection on this score is
that the applicant enjoys no right of access to the Labour Court in respect
of disputes concerning chapter III and accordingly prays that the
paragraphs in support thereof be struck out.
15. The respondent’s objection is predicated upon the decision of Tip AJ in
Dudley v City of Cape Town (2004) 25 ILJ 305 (LC), where the learned
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judge held that chapter III is not directly enforceable by a single aggrieved
individual. At 320B the learned observed:
A comparison of these two chapters shows that there are indeed points of distinction
that are significant for this case. The prohibition against unfair discrimination (in
chapter II) is directly enforceable by a single aggrieved individual or by the members
of an affected group. Whether or not there has been discrimination is a matter of law
and the application of the law to the complained of facts. That is a matter for the
decision of this court or an arbitrator and the content of the prohibition is not in any
way the subject of consultation between employer and employees.
By contrast, the structure of chapter III is such that, by definition, it is intended to and
can be brought into operation only within a collective environment. This is inherent in
the nature of the duties of an employer outlined in s 13(2). Those are: consultation,
analysis, preparation of an employment equity plan and reports to the director
general on progress and the implementation of the plan…..
The above survey of the provisions of chapter III displays very clearly that its
essential nature is programmatic and systematic. Importantly, its methodology is
uncompromisingly collective. This is evident from the Act. It is reflected also in the
code of good practice issued in terms of section 54 of the EEA, para 7.2 of which sets
out several objectives and guidelines in relation to the consultation process.
19. On this basis Tip, AJ held that there is not an individual right to affirmative
action and that the enforcement of affirmative action was a matter for
collective bargaining and regulation by the directorgeneral. In the main,
the failure to comply with the requirements of chapter III of the
the failure to comply with the requirements of chapter III of the
Employment Equity Act dealing with employment equity plans and
affirmative action will be a compliance issue enforceable by the director
general and not an unfair discrimination case enforceable by litigation at
the hands of an aggrieved individual. On this score Tip, AJ disagreed with
Waglay, J in Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC). In that
matter Waglay, J held:
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There is no doubt that an employer may not discriminate unfairly against an
employee. This right not to be unfairly discriminated against is an integral part of the
right to equality and a necessary condition of the inherent right to dignity in section 10
of the Constitution. This right not to be unfairly discriminated against is a right enjoyed
by all employees whether or not they fall within any of the designated groups as
identified in the Act. If an employer fails to promote the achievement of equality
through taking affirmative action measures, then it may properly be said that the
employer has violated the right of an employee who falls within one of the designated
groups not to be unfairly discriminated against. Similarly, if an employer discriminates
against an employee in the nondesignated group by preferring an employee from the
designated group that is not suitably qualified as contemplated in section 20(3)(5) of
the Act, then the employer has violated the right of such an employee not to be
discriminated against unfairly. In either case, the issue is whether the employer has
violated the employee’s right not to be discriminated against. To this extent
affirmative action can found a basis for a cause of action.
20. Waglay, J went on to summarize his conclusion in the following terms:
On an analysis of the Constitution and the Act, I am satisfied that the Act and
specifically section 20(3)(5) read with chapter II do indeed provide for a right to
affirmative action. The exact scope or boundaries of such right is a matter that will
have to be developed out of the facts of each case.
21. Tip, AJ rejected this conclusion arguing that Waglay, J had not
sufficiently maintained the distinction between chapters II and III that
sufficiently maintained the distinction between chapters II and III that
the interpretation of the Act requires. In my respectful view the decision
of Tip, AJ is to be preferred. Affirmative action measures that have not
been applied by a designated employer give rise to an enforcement
issue under chapter III at the instance of the Director General of Labour
and not an unfair discrimination claim under chapter II. There is no
sound basis upon which subsections 20(3)(5) fall to be read together
with the provisions of chapter II and likewise no basis upon which they
can produce a directly enforceable right to affirmative action.
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22. The facts and legal issues alleged by the applicant in his statement of
case mainly relate to an alleged failure by the respondent to prepare an
employment equity plan as required by sections 20 and 36. As such
they do indeed amount to a dispute concerning chapter III of the
Employment Equity Act, and on the basis of the line of reasoning in
Dudley the respondent’s objection is sound. The said paragraphs
therefore fail to disclose a cause of action and fall to be struck out on
that basis.
23. The respondent’s second objection pertains to the applicant’s first
purported amendment of the statement of case handed to the
respondent’s attorney at the pretrial conference on 30 June 2004. The
basis of this objection is twofold. Firstly, the respondent was denied an
opportunity to object to the amendment and in the face of an objection
no application was made to court for leave to substitute the original
statement of case. Secondly, had the respondent been afforded such
an opportunity to object to the amendment it would have objected
thereto on similar grounds to those set forth in the first objection. Here
again, the purported amendment contains numerous averments which
amount to an allegation of a dispute concerning chapter III of the
Employment Equity Act. However, as the applicant failed to follow
proper procedure in relation to the amendment, it is unnecessary to
deal with these allegations in any detail. Suffice it to say that the failure
to follow correct procedure in relation to the amendment is sufficient to
uphold the objection in limine.
24. The respondent’s third objection has to do with the application to set
the matter down for a pretrial conference before a judge in chambers
dated 16 th July 2004. At the pretrial conference on 30 June 2004 the
dated 16 th July 2004. At the pretrial conference on 30 June 2004 the
respondent’s attorney aborted the conference on the basis that a pre
trial conference should only be held after the close of pleadings.
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Because it became apparent that the applicant intended to amend his
statement of case, it was premature to hold the conference as the
pleadings had not yet closed. This too is a valid objection as the
applicant is still persisting with an application to amend his statement of
case. Accordingly a pretrial conference would indeed be premature.
25. Finally, the respondent also objects to the applicant’s application to
amend his statement of case in terms of rule 11 contained in the
document titled “Filing Notice” dated 10 August 2004. This 24page
document is problematic in a number of respects. However, it can be
disposed of exclusively with reference to paragraphs 2.1 and 2.2 of it.
These read as follows:
2.1 Paragraph 7 and 8 of the initial statement of claim filed on 21 May 2004 which was
replaced by amendments filed 30 June 2004 will be replaced in its entirety by this
amended statement of claim in terms of paragraphs 7 and 8.
2.2 The entire statement of claim filed on 21 May 2004 will stay the same except for the
amendments made in terms of paragraph 1 dated 9 June 2004 and paragraph 7 and
8 filed 20 August 2004.
26. The relief sought in paragraph 2.1 and 2.2 is inconsistent, vague and
embarrassing or contradictory. First of all, paragraph 2.1 contains the
erroneous statement that paragraph 7 and 8 of the initial statement of
claim were replaced by amendments filed on 30 June 2004. The
respondent denies this on the grounds that such was an invalid
amendment. Moreover the wording of paragraph 2 is vague and
embarrassing in that it is not apparent from it whether the applicant
alleges that paragraph 7 and 8 of the initial statement of case are to be
replaced in their entirety by the amended statement of case, or whether
the initial statement which was replaced by amendments filed on 30
the initial statement which was replaced by amendments filed on 30
June 2004 is to be replaced in its entirety by this amended statement of
claim. Paragraph 2.1 thereof contains a reference to “this amended
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statement of claim” without identifying what document it refers to. The
respondent will accordingly be unable to identify the document which
fits the description of “this amended statement of claim”. In addition,
the meaning of paragraph 2.2 is not clear in that it contains a reference
to “amendments made in terms of paragraph 1 dated 9 June 2004”
which document has not been filed of record and is not in possession
of the respondent. Furthermore, paragraph 2.1 and 2.2 are
contradictory in that paragraph 2.1 contains the words that “the initial
statement of claim filed on 21 May 2004 will be replaced in its entirety
by this amended statement of claim” while paragraph 2.2 thereof
contains the words that the “entire statement of claim filed on 11 May
2004 will stay the same” except for two amendments. It is not possible
in one amendment to replace the statement of claim filed on 21 May
2004 in its entirety and at the same time for it to stay the same except
for two amendments. The respondent accordingly is embarrassed as it
is unable to determine what amendment the applicant seeks. Finally, it
is not clear from the contents of paragraph 2.1 and 2.2 whether the
applicant intends to persist with the allegations contained in paragraph
7.5; 7.12 and 8.5; 8.12 of his initial statement of claim dated 13 May
2004.
27. Accordingly the respondent makes the valid objection that it is unable
to establish from the “Filing Notice” what allegations the applicant
applies to amend, what allegations the applicant tends to retain and
what allegations the applicant tends to rely on in support of his claim.
And furthermore the application to amend contains allegations of fact
and issues of law amounting to the allegation of a dispute concerning
chapter III of the Employment Equity Act in respect of which the
applicant does not enjoy the right of direct access to the Labour Court.
applicant does not enjoy the right of direct access to the Labour Court.
Given the ensuing shambles it seems fair to strike out the entire
pleading.
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28. In argument Mr Crowe, who appeared on behalf of the respondent,
was at pains to emphasize that the respondent has raised the
objections not merely to be technical but in a genuine attempt to
confine the issues for determination before the court to those to which
the court is competent to adjudicate, namely a dispute relating to
alleged unfair discrimination in terms of section 6(1) of the Employment
Equity Act. That section proscribes unfair discrimination and provides a
remedy against an employer who unfairly discriminates, 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, color, sex
orientation, age, disability, religion, HIV status, conscience, belief,
political opinion, culture, language and birth. To the extent that the
applicant contends that his failure to achieve promotion was based on
racial discrimination he should be entitled to pursue relief under section
6. However, to permit the applicant to persist in advancing issues
rightly categorized as a dispute under chapter III of the Employment
Equity Act would not only prejudice the respondent but would
inconvenience the court by requiring the consideration of evidence and
legal argument irrelevant to issues competent for adjudication. These
concerns apply equally to the original statement of case as they do to
the purported amendments of the it, which as discussed are also
objectionable on procedural grounds. Furthermore, a pretrial
conference would at this stage also be premature until such time as the
applicant gets his pleadings properly in order.
applicant gets his pleadings properly in order.
29. At the hearing the respondent did not press the issue of costs.
Nevertheless, the applicant needs to understand that the haphazard
manner in which he has gone about pleading his case has caused his
employer considerable inconvenience. Should he wish to proceed with
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his allegations of unfair discrimination he would be well advised to
obtain suitable advice on how to proceed and ensure that the proper
formulation of his claim is accomplished in accordance with the rules
and proper procedure. His failure to do so bears the risk of attracting
an adverse costs order at some point in the future.
30. As I have indicated, all four of the respondent’s objections are valid and
in the premises, the following orders are made:
1. It was declared that the applicant enjoys no right of direct access to this
court in respect of disputes concerning chapter III of the Employment
Equity Act.
2. Paragraphs 7.4; 7.5; 7.7; 7.8; 7.10; 8.4; 8.5; 8.7; 8.8 and 8.10 of the
applicant’s statement of case dated 13 May 2004 are struck out.
3. The applicant’s purported amendment of his statement of case in terms
of the document titled “Statement of Claim (Rule 6)” handed to the
respondent’s attorney at the pretrial conference on 30 June 2004 is
declared a nullity and of no force and effect.
4. The applicant’s application to set the matter down for a pretrial
conference before a judge in chambers is dismissed.
5. The applicant’s application to amend his statement of case in terms of
Rule 11 contained in the applicant’s document entitled “Filing Notice”
dated 2 August 2004 is dismissed.
6. There is no order as to costs.
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MURPHY, AJ
Date of hearing: 22 March 2005
Date of Judgment: 18 April 2005
APPEARANCES:
Applicant appeared personally
Respondent’s representative: Adv. M. Crowe instructed by D Dykman
attorneys
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