Thekiso v IBM South Africa (Freund AJ, JS 415/05)
IBM lost a contract to provide services to a
mining house, and had to restructure as a
consequence. In the course of the restructuring,
many posts became redundant, but a new post, that of
asset management, was created. Ms Thekiso claimed
that she had been unfairly selected for retrenchment
since the company had failed to consider section 15
of the Employment Equity Act when appointing a white
male to the new post. This argument was raised
during the course of the Labour Court proceedings in
which the fairness of the retrenchment was
challenged more generally, and it was common cause
that the issue of affirmative action has not been
raised during the consultations that precede the
retrenchment.
The argument raised was that the EEA required every
designated employer to implement affirmative action
measures for people from designated groups.
Affirmative action measurements are designed to
ensure that suitably qualified people from
designated groups have equal employment
opportunities, and are equitably represented in the
workplace. They include measures to retain and
develop people from designated groups. On this
basis, the company was obliged to retain the
applicant in preference to any white male, provided
she was suitably qualified for the position. (She
argued that she was. The relevant definition refers
to the ability to acquire, within a reasonable time,
the ability to do the job).
The Court rejected the argument, and in effect, held
that the EEA, insofar as it obliges designated
employers to implement affirmative action measures,
could be used as a shield, but not a sword. In other
words, there is no right to rely directly on the EEA
to claim unfair selection in the context of a
retrenchment. The Court went further and said -
"Not only does the EEA not provide any mechanism for
pursuing such a complaint [that a retrenchment
constitutes a breach of the employer's affirmative
action obligations], but, in my view, on a proper
construction thereof, there is no legal obligation
on an employer when taking any particular
appointment or dismissal decision to give preference
to suitably qualified employees from a designated
group. In my view, section 15(2)(d)(ii) does not
impose an obligation on an employer contemplating
retrenchments to retain black employees in
preference to white employees it believes better
meets its needs."
The Court was careful to note that affirmative
action considerations had played no role in the
consultation process. The Court made no decision on
whether the company would have been entitled to take
race and gender into account when selecting
employees to be dismissed, nor what the position
would have been had Ms Thekiso raised the issue of
preference on the basis of race and gender during
the selection process. There is also the
possibility, of course, that these issues may be
regulated in the employer's policies and procedures,
giving rise to a contractual claim rather than a
claim under the EEA. Had this claim not been raised
so late in the day, the case might have taken on a
very different complexion.
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Greetings!
The Constitution establishes a substantive
right to equality, and the Employment Equity Act
mirrors this right in the employment context.
But the legislative prohibition against unfair
discrimination is broadly stated, and it has
been left to the Courts to fill in the gaps.
Three recent judgments deal with different
aspects of the right to equality, and provide
answers to difficult questions.
The first is Thekiso v IBM South Africa (Freund
AJ, JS 415/05), in which a retrenched employee,
a black woman, challenged her employer's
decision to appoint a white man to a new job
established during a restructuring. She claimed
a right to the job on the basis of her status as
a historically disadvantaged South African, and
her capacity, within a reasonable time, to do
the job. The second case, COWA and others v
Petroleum Oil and Gas Co-Operative of South
Africa (Pillay J C437/2003), concerned a
challenge to a remuneration structure that
advantage employees with family
responsibilities. A claim was brought on behalf
of those employees without dependent spouses and
children who claimed that they were doing the
same work for less pay purely on the basis that
they had no family responsibilities. Finally, a
recent judgment by the High Court, Du Preez v
Minister of Justice and Constitutional
Development [2006] 8 BLLR 767 (SE), confirms a
trend in terms of which the courts are inclined
to monitor the implementation of affirmative
action programmes, and to adopt a relatively
critical perspective when doing so.
Each of the judgments is discussed in more
detail below, and all can be accessed on the
Caselaw website.
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COWA and others v Petroleum Oil and Gas
Co-Operative of South Africa (Pillay J
C437/2003) |
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As noted above, this case concerned a
challenge to conditions of employment,
established by a collective agreement
that provided more favourable terms for
employee with family responsibilities.
This was an unintended consequence of a
conversion to a total guaranteed
remuneration package when existing
benefits, some of which were calculated
to take into account the number of each
employee’s dependants, were incorporated
into the package.
In considering the claim for
discrimination on the grounds of family
responsibility, the Court reviewed the
essential content of the right. The
Court noted that the family is an
institution that in international terms
is highly valued, and made reference to
the UN Declaration of Human Rights and
the European Social Charter and the
South African Constitution, noting the
status accorded to the family in those
instruments.
The Court referred particularly to ILO
Convention 156 on Workers with Family
Responsibilities from which the
definition of “family responsibilities”
in the Employment Equity Act is drawn.
This definition reads –
“The responsibility of employees in
relation to their spouse or partner,
their dependent children or other
members of their immediate family who
need their care or support or approach.”
The substantive right to equality
established by the Constitution and the
Employment Equity Act had the result
that special measures are applied to
workers with family responsibilities to
adjust for the hardships of having those
responsibilities. Without affirmation of
the special status, there is no right to
equality amongst the workforce.
In the present case, the Company was
sharing the responsibility for
addressing the special needs of workers
with family responsibly by providing
additional remuneration for employees
with dependents. The Court concluded,
“the Second Respondent pays more to
employees with dependents, not as a
reward for performance. Nor is it an
accolade for special achievement. It is
a legal and moral response to the social
needs of a vulnerable group of
employees.”
The Court dismissed the application and
ordered that the Applicant pay 30% of
the Company’s costs.
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Du Preez v Minister of Justice and
Constitutional Development [2006] 8 BLLR
767 (SE) |
This case, brought under the
promotion of Equality and Prevention of
Unfair Discrimination Act, 2000,
concerned the appointment of
Magistrates. The claim was brought under
the Equality Act since Magistrates,
being judicial officers independent of
the public service, are subject only to
the Constitution. They are not employees
as defined by the Employment Equity Act,
but the Courts’ observations apply
equally to workplaces in respect of
which the EEA applies. The claim
concerned the criteria for the
shortlisting for posts of Regional
Magistrates in the Port Elizabeth area.
The criteria included experience,
qualifications, race and gender to which
each was afforded a specific weighting.
Candidates with the highest scores were
placed on a short list and interviewed
by the Magistrate’s Commission. The
Applicant, a white male applied for a
position and did not make the shortlist.
He initiated proceedings under the
Equality Act complaining that he had
been discriminated against. After a
comprehensive review of the evidence,
the Court found that the shortlisting
formula raised an insurmountable
obstacle for the Applicant, and
established an absolute barrier to his
appointment to the post of Regional
Court Magistrate. The formula
effectively gave “automatic and absolute
preference” to black female applicants
who met the minimum job requirements
irrespective of how they compared with
other applicants. No regard was had to
how the formula affected other
applicants nor did it address the
specific needs of the post, beyond the
minimum qualifications for the job. In
setting aside the criteria and ordering
the Department to re-advertise the
positions, the Court concluded the
following – “The Respondents, not being
subject to the Employment Equity Act,
are not obliged to prepare and implement
an employment equity plan as
contemplated in that Act. Nevertheless,
one would expect it of them to set an
example and have some formal and
comprehensive affirmative action plan,
which – in an open democratic society –
would be available to all interested
parties. Only then would candidates for
the posts of judicial officers know
where they stand. Instead, various
officials have here outlined the
respondents’ policy in regard to the
appointment of Regional Court
Magistrates. They have done so in broad
and vague terms. The specifics of the
shortlisting criteria for the various
posts had to be gleaned from
documentation supplied by the
respondents’ legal representatives, from
which the court had to piece together
the implications of the departmental
policy. That policy is rudimentary and
unsatisfactory, to say the least.” The
judgments confirm a trend in terms of
which the Courts will readily supervise
the application of affirmative action
plans, and set aside appointments that
are made in the name of affirmative
action but where plans are either
non-existence or inconsistent with the
purpose underlying the EEA.
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Quote of the week |
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'The cynic might observe that medical
certificates are available for anyone
paying the appropriate fee. If
perceptions of the abuse of medical
certificates are widespread - as I
believe they are - it strengthens the
need for courts to be especially
vigilant against their misuse.
One inference to be drawn in this
application is that medical
practitioners were not prepared to go on
oath to defend their certificates.
Another is that they were not prepared
to spare the time to explain their very
truncated and laconic comments'
In a nutshell, the Labour Appeal Court
has now made it unequivocally clear that
medical certificates in the absence of
supporting affidavits by doctors
constitute "inadmissible hearsay
evidence".
Cited in Nale and Mr Price (20060331)
GAPT11102-05 [CCMA] per Commissioner:
Braam van Wyk
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Unfair dismissal by Andre van Niekerk
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This guide to the law of unfair
dismissal, now in its third edition,
explains the law with authority and in
plain language. It is a guide, for trade
unionists and employer representatives
(and their legal representatives), HR
practitioners and law students. The
authors answer the following questions -
who is an employee?; what is a
dismissal?; what are the requirements
for a fair dismissal?; what are
employers' and employees' respective
rights and obligations?; if I have been
unfairly dismissed what procedures do I
follow, and what are my remedies?
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Caselaw.co.za Newsletter Vol 1 Edition 2 2006
