Employment law update – Discrimination based on an arbitrary ground

December 1st, 2018
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Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowmans in Johannesburg.

In Chitsinde v Sol Plaatje University [2018] 10 BLLR 1012 (LC), the applicant was employed by the National Institute of Higher Education (NIHE) as an asset and fleet management officer. NIHE was subsequently disestablished and the applicant was dismissed for operational requirements. The newly established Sol Plaatje University was offering former employees of NIHE preference to apply for posts at the university. The applicant applied for the position of Senior Secretariat Officer and was called to an interview. The interview panel requested the applicant to set out in writing how he saw his role in the position of Senior Secretariat Officer. The applicant was subsequently unsuccessful.

The applicant’s union referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), alleging that the refusal by the university to appoint the applicant amounted to unfair discrimination on an arbitrary ground, that ground being that he was the only applicant required to write an ‘aptitude test’ during the interview process. The dispute remained unresolved at conciliation and the applicant referred a dispute to the Labour Court (LC) in terms of the Employment Equity Act 55 of 1998.

The LC was required to determine whether, the fact that the applicant was the only candidate who was required to write an ‘aptitude test’, amounted to unfair discrimination on an arbitrary ground. The court noted that where unfair discrimination is alleged on an arbitrary ground, the complainant must prove that the conduct complained of amounted to discrimination and, if so, that it was irrational, as well as unfair. The conduct complained of was that the applicant was required to write a test when no one else was.

On a balance of probabilities, the court found that the interview panel had asked the applicant to set out in writing how he saw his role in the position of Senior Secretariat Officer to give the applicant a further opportunity to show that he was suitable for the position. This is because he had failed to impress the interview panel in the oral interview. In the circumstances, the applicant was treated more favourably than any other candidate who applied for posts at the university. The court held that although the applicant was treated differently to the other candidates, it was to his benefit. The applicant had been provided with a second chance to persuade the interview panel that he was suitable for the position. While this amounted to differentiation, it did not amount to discrimination.

The court held that decision by the interview panel to require the applicant to provide written submissions was entirely rational. The applicant could not claim that he was discriminated against by being treated more favourably than other candidates. Given that the applicant had failed to prove discrimination on an arbitrary ground, there was no unfair discrimination.

The applicant’s claim was dismissed with costs.

Unfair labour practice relating to promotion

In IMATU obo Joubert v Modimolle Local Municipality [2018] 11 BLLR 1106 (LAC), the applicant was employed by Modimolle Local Municipality on a fixed term contract. During her contract term, the applicant applied to be appointed in a permanent position as administration clerk. The applicant’s application was unsuccessful, and she referred an unfair labour practice dispute relating to promotion to the South African Local Government Bargaining Council. The bargaining council found in favour of the applicant and ordered the municipality to appoint her retrospectively into the position of administration clerk.

The municipality refused to reinstate the applicant and instead sought to review the award, which review application was dismissed due to a failure by the municipality to pursue its review application timeously. Notwithstanding this, the municipality still did not appoint the applicant to the position of administration clerk. Consequently, the Independent Municipal and Allied Trade Union (IMATU) on behalf of the applicant launched a contempt application in the Labour Court (LC) against the municipality for a failure to comply with the arbitration award.

In considering whether the municipality’s failure to comply with the award had been in bad faith and deliberate, the LC found that the applicant was not in fact entitled to be promoted to the position of administration clerk. This was because the unfair labour practice jurisdiction extended only to employees and since the applicant’s contract had expired at the time of the award, and with no challenge to the expiry of her employment contract having been made, it was no longer competent for the applicant to demand reinstatement so that she could be promoted. The court held that the award in an unfair labour dispute concerning promotion could not restore the employment relationship between an employee and employer.

On appeal to the Labour Appeal Court (LAC), IMATU contended that the LC had effectively sought to review the award when the contempt application before it should have been granted. In this regard, IMATU submitted that since an unfair labour practice dispute relating to promotion may be determined by a bargaining council on terms that it deems reasonable, which may include ordering reinstatement or re-employment, the relief granted was competent. When the fixed term contract expired, a dispute existed between the applicant and the municipality and, accordingly, the award was enforceable.

The LAC found that a fixed term contract employee is only employed for a limited duration to a particular post. Such an employee may, however, apply and/or be offered a permanent position and this would remove the employee from the realm of a fixed term contract and see them employed in another post. In this matter, it is apparent that the applicant applied for a post and was unsuccessful. This cannot amount to a failure by the municipality to promote her because she was not an employee who could be promoted based on her fixed term contract. She had, in effect, applied for a vacant post and had not sought promotion to a vacant post.

The court held that a fixed term employee is in the same position as a non-employee who applied for a post. Thus, the reliance on an unfair labour practice relating to promotion was misconceived. At the time the award was issued, the applicant was no longer an employee of the municipality. Since no unfair dismissal dispute had been referred to the bargaining council for adjudication, the expiry of her fixed term contract went unchallenged. The arbitrator in the promotion dispute was not empowered to determine an unfair dismissal dispute and consequently could not order the reinstatement of the applicant into a position at the municipality.

In considering a contempt application, the court found that it is proper that a court consider not simply the order sought to be enforced but the reasons behind it. Given the expiry of her fixed term contract, the applicant was no longer an employee of the municipality, and consequently no effect could be given to an order that she be retrospectively reinstated into the promoted position of administration clerk with her former employer. In any event, the post no longer existed at the municipality. In such circumstances, the court held that there could be no contempt of court.

The appeal was dismissed.

This article was first published in De Rebus in 2018 (Dec) DR 40.

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