Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.

Affirmative action measures in the absence of an employment equity plan

In Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality and Another [2016] 7 BLLR 685 (LC) the applicant employee, a white male, applied for a post but was unsuccessful after having been shortlisted and interviewed for the position.  The post was then left vacant for a period and was re-advertised approximately three months later. He again applied and was not shortlisted this time. It later came to the attention of the applicant that when he applied for the post initially the process had been nullified because the approval of the short list was subject to the condition that only applicants from designated groups would be shortlisted and interviewed. This condition had been based on the workplace profile statistics, which reflected that there were too many white males in the group.

The applicant argued that he had been unfairly discriminated against on the basis of race and gender when he was not appointed to the post, which was a post that he had been acting in for a period of time. The municipality admitted that it discriminated against the applicant by failing to consider him for the position as he was not a member of a designated group but argued that this was not unfair as it was permitted to do so under the Employment Equity Act 55 of 1998.

Given the fact that the municipality admitted that it discriminated against the employee, the onus was on the municipality to prove that the discrimination was fair. The court held that if the municipality had acted in accordance with an affirmative action plan when discriminating against the applicant then the discrimination could not have been unfair. The municipality, however, conceded that it did not have an employment equity plan in place at the time that it discriminated against the applicant. It nevertheless argued that it had acted in accordance with its staffing policy contained in a collective agreement and thus this constituted an affirmative action measure under s 15 of the Employment Equity Act.

Coetzee AJ held that an affirmative action measure should be based on prescribed information and should set out numerical goals and the time period during which to achieve those goals. An affirmative action measure must, furthermore, be capable of being measured and monitored. It was held that the staffing policy did not comply with the Employment Equity Act as it was not a structured approach to the implementation of affirmative action measures as envisaged in the Employment Equity Act. An applicant who is excluded from promotion would not be able to challenge the process and to uphold the right to human dignity if the employer relied on a document to justify the discrimination that did not contain measurable numerical targets and measures.

It was held that the Employment Equity Act requires employers to have an employment equity plan setting out measurable targets before simply excluding candidates for appointment on the grounds of race or gender. Thus, the exclusion of the applicant because he was a white male in the absence of an employment equity plan amounted to unfair discrimination.

The municipality was ordered to appoint the applicant to the post with retrospective effect.

Vicarious liability for sexual harassment in the workplace

In PE v Ikwezi Municipality and Another [2016] 7 BLLR 723 (ECG), an employee was sexually molested and pestered by her superior during working hours on a number of occasions. The complainant alleged that she suffered post-traumatic stress disorder as a result of the sexual harassment and eventually was forced to resign. The complainant then instituted a claim for damages against the municipality and the perpetrator.

The municipality admitted that it had a legal duty to protect the complainant’s rights and prevent her from suffering from trauma but argued that it had taken reasonable steps to protect her and thus was not liable for damages. In this regard, the municipality alleged that it had taken reasonable steps to protect the complainant by requiring the perpetrator to attend a disciplinary inquiry and keeping the complainant and perpetrator at separate sites pending the outcome of the disciplinary inquiry. The alleged perpetrator was found guilty during the disciplinary inquiry and was issued with a final written warning and a two-week suspension without pay. The municipality argued that it was bound by the decision of the chairperson in the disciplinary proceedings and thus it had no alternative but to allow the perpetrator to return to work after the suspension had lapsed. The court, however, held that this was incorrect as the municipality was not required to simply accept the sanction handed down by the chairperson but could have taken the sanction on review.

The court held that the perpetrator was liable to pay the complainant damages to the extent that she is able to prove that she suffered harm as a result of his actions.

As regards the municipality’s liability, the court considered vicarious liability in the context of a working relationship where there is an unequal balance of power between the complainant and the perpetrator. Pickering J acknowledged that different factors apply when harassment is carried out by a superior. In this regard, where an employee is placed in a position of trust, the employer should ensure that the employee is capable of trust and thus an employer should be vicariously liable if that person abuses that trust. Reference was also made to case law in the United States of America where it has been held that where the harasser is in a position of power the employer is strictly liable. The court held the employer and the perpetrator jointly and severally liable for damages that the complainant may prove were caused by the sexual harassment.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

CCMA writ – a legal fiction

CCMA v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty) Ltd and Others (unreported case no J1807/15, J1706/15, JA94/2015, 28-6-2016) (CJ Musi JA with Davis JA and Murphy AJA).

Armed with separate and unrelated arbitration awards in their favour, two employees working for two different employers, individually approached the Commission for Conciliation, Mediation and Arbitration (CCMA) to have their respective awards enforced in terms of s 143 of the Labour Relations Act 66 of 1995 (LRA), this after both employers failed to abide by the remedies set out in the respective awards. Once both awards were certified in terms of s 143, the employees delivered same to the relevant Sheriff for the latter to execute on.

Both employers approached the Labour Court (LC) on an urgent basis for an order to stay the enforcement awards pending their applications to review and set aside the arbitration awards granted in favour of their respective employee.

As both urgent applications called on the court to address the same question in law, the two applications were consolidated and served before Phatshoane AJ.

When hearing the applications the court a quo mero motu raised the question of whether the CCMA was mandated to issue writs of execution in respect of arbitration awards delivered under its auspices. Having examined the relevant sections of the LRA and taking into account the fact that the CCMA was not a court of law, the LC found that the CCMA was not assigned the statutory power to issue writs and, therefore, set aside both writs as they were a ‘nullity for lack of jurisdiction’.

The CCMA, who did not enter proceedings before the court a quo, appealed the aforementioned finding at the Labour Appeal Court (LAC).

Relevant to the appeal was an interpretation of subs 143(1) and (3) which read:

‘(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the LC in respect of which a writ has been issued, unless it is an advisory arbitration award.

(2) …

(3) An arbitration award may only be enforced in terms of subsection (1) if the director has certified that the arbitration award is an award contemplated in subsection (1).’

The LAC held that when interpreting the law, regard must be given to the context in which the statute or section under review was enacted. This involved examining what the law was before the statute or section was passed, what the mischief was, what remedy the legislature appointed and the reasons thereof.

The LAC said that to construct an interpretation of s 143 it was enjoined to supress the mischief and advance the remedy.

The history and context of s 143 – as set out in the LAC judgment

In the original enactment of the LRA, s 143 stated that an arbitration award could only be enforced by way of an application to the LC in terms of s 158(1)(c) of the LRA. This proved largely ineffective as both the time and cost factors associated with all applications brought in the normal course deterred many employees from pursuing such recourse. Consequentially an employee whose employer failed to abide by the award, was left with an empty award.

The 2002 amendments to the LRA brought with it an alternative. In terms of the amended s 143, any employee whose employer failed to abide by an arbitration award could approach the CCMA Director to have the arbitration award certified. Once certified the award was given the same status as if it were an order of court. On the strength of the certified award the Registrar of the LC would issue a writ, which the employee would thereafter deliver to the Sheriff for execution.

While this procedure addressed some of the shortfalls associated with the original s 143, the procedure was nevertheless unacceptable as it still required an employee to approach the LC to have the writ issued.

The 2014 amendments addressed this specific issue by introducing a further amendment to s 143. Effective 2015, once an award was certified it could be presented to a Sheriff for execution without an employee having to go to the LC for a writ.

Against this background the LAC held that the legislature amended s 143 to makes it ‘easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award’.

The LAC turned next to Phatshoane AJ interpretation of s 143; the judge found that on the clear language of s 143 ‘the award of the CCMA may be enforced as [if it] were an order of the Labour Court provided a writ has been issued in respect thereof.’

The LAC held that the word ‘provided’ did not feature in s 143. The instructive phrase when interpreting s 143 was ‘as if it were an order of the LC in respect of which a writ has been issued’. When interpreting this phrase the LAC said.

‘By using the words “as if it were”; the legislature created a legal fiction. The CCMA is not a court of law and writs are issued by courts of law and not administrative tribunals like the CCMA. In order to overcome this reality, the legislature had to create this fiction. The legislature deemed the CCMA to have a status which it would not otherwise have, and consequently established an arrangement which, without the fiction, would be objectionable because it is incompatible with legal principle. … A legal fiction therefore requires us to assume as fact that which we know is not true.

Therefore, section 143(1) read with section 143(3) means that when an arbitration award is certified by the Director, it may be enforced as if it were an order of the Labour Court in respect to which a writ has been issued. We must therefore not only assume that it is an order of the Labour Court but also assume that a writ has been issued in respect of that order.’

On this interpretation the LAC found that the court a quo erred in its finding that the CCMA issues writs of execution when certifying an award. The correct interpretation was that a certified award, in terms of the 2014 amendments, is equivalent to an order of the LC to which a writ has been issued. In addition the LAC held that the LC is seized with the power to stay the enforcement of an award, which will include a certified award.

For these reasons the LAC set aside the LC’s findings and ordered that both matters be remitted to the LC for a hearing de novo. No order as to costs was made.

These articles were first published in De Rebus in 2016 (Sept) DR 45.