Employment law update – Adopting a flexible and ‘situation sensitive’ approach to discrimination claims

March 1st, 2014
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Solidarity obo Barnard v SAPS (SCA) (unreported case no 165/13, 28-11-2013) (Navsa ADP, Ponnan, Tshiqi, Theron JJA and Zondi AJA)

By Moksha Naidoo

On two separate occasions, Barnard, a white female was overlooked for promotion despite the respective interviewing panels considering her the best candidate on each occasion.

Subsequent to her second attempt at promotion, Barnard referred an unfair discrimination claim to the Labour Court (LC). The LC found that the actions of the South African Police Service (SAPS) amounted to unfair discrimination and awarded Barnard compensation. Her victory was short-lived as an appeal to the Labour Appeal Court (LAC) overturned this decision.

Barnard approached the Supreme Court of Appeal (SCA) seeking an order to substitute the findings of the LAC with that of the LC.

The facts

In 2005 Barnard applied for the position of superintendent. She was one of seven applicants who were shortlisted and interviewed. Barnard scored the highest at the interviews and was recommended for the position.

The divisional commissioner took the view that appointing a non-designated person to that position would undermine employment equity and hence he withdrew the position. The following year the position was re-advertised and Barnard was again shortlisted along with seven other candidates. The three recommended candidates were Barnard who scored 85,33%, Mogadima who scored 78% and Ledwaba who achieved a score of 74%.

Even though there was an overrepresentation of white females and an underrepresentation of both African males and females at the level of superintendent, the divisional commissioner on this occasion supported Barnard’s recommendation to the national commissioner.

In response the national commissioner addressed a letter to Barnard informing her that, despite being recommended, her appointment to the position would not address representivity. Barnard was also advised that the position she applied for was not considered a ‘critical post’ and as a result thereof, would be withdrawn and re-advertised the following year. In so doing, according to the national commissioner, service delivery would not be compromised in any way.

The LC

In his judgment, (Solidarity obo Barnard v SAPS [2010] 5 BLLR 561 (LC)), Pretorius AJ found that when a post cannot be filled by a suitable candidate from a designated group, the promotion should not, in the absence of a satisfactory explanation, be denied to a suitably qualified employee from a non-designated group.

Pretorius AJ further found that the SAPS, through its only witness, could not discharge its onus of proving the discrimination was fair.

The LAC

On appeal (South African Police Service v Solidarity obo Barnard [2013] 1 BLLR 1 (LAC)), Mlambo JP, as he then was, set aside the LC’s findings.

First, the LAC took the view that discrimination under these circumstances would involve differential treatment between and among people and that, in the absence of anyone being appointed to the postion, no discrimination had taken place.

Secondly (and in contrast to its initial findings), the LAC further held that the discrimination Barnard endured was fair and justified given the objectives of affirmative action as a means of redressing past inequalities.

The SCA

The starting point for the SCA was to consider whether or not the factual matrix gave rise to any form of discrimination and, if so, whether the SAPS established the fairness thereof.

Navsa ADJP found the LAC’s view that, in the absence of the post being filled no discrimination had taken place, was flawed. The court held that if there was an African candidate who had the same skills and achieved the same scores as Barnard, there would have been no doubt that such person would have been appointed. It could therefore not be contested that Barnard was not appointed because she was a white female.

Having come to this conclusion the court, in adopting a flexible and ‘situation sensitive’ approach to the merits, had to decide whether or not the aforementioned discrimination was fair.

The SCA considered the following: First, as a female, Barnard formed part of a designated group. Secondly, recommendations made by an interviewing panel and subsequently supported by the divisional commissioner, while not binding on the national commissioner, served an important function that could not be taken lightly. Deviation from these recommendations must be justified.

In casu the panel strongly recommended Barnard for the post not only because she had obtained the highest score, with her closest rival scoring nearly 10% below her, but also because she was the only person, in their view, who displayed enthusiasm and passion to deal with members of the community who were dissatisfied with the SAPS’ service.

Furthermore, the divisional commissioner endorsed Barnard’s recommendation and added that her appointment to the position was in the best interest of service delivery. He further advised the national commissioner that by not appointing the candidate who for the past two years was considered the best person for the position, would negatively affect staff moral within the force.

The national commissioner’s failure at legal proceedings to adequately explain his decision as to why he did not support the aforementioned recommendations, led the SCA to conclude that he had not ‘grappled’ with the reasons for such recommendations.

The SCA further rejected the argument that Barnard’s appointment would vitiate the SAPS’s employment equity plan. To this the SCA held that the numerical targets and equity were not absolute criteria for appointment. If this were the case then one would be adopting a quota system, which the Employment Equity Act  55 of 1998 expressly prohibits.

The SCA further failed to accept, as justification for the SAPS’ conduct, that the postion under review was not considered ‘critical’. Among the reasons for the court to arrive at this conclusion was the fact that the SAPS could not explain why the position had been advertised three times in the past three years if it was not an important position aimed at enhancing the service of the SAPS.

The court concurred with the findings of Pretorius AJ and, in so doing, upheld the appeal with costs.

Barnard was awarded compensation equivalent to the difference she earned in her current capacity compared to what she would have earned, for a period of two years, had she been appointed to the post.

Note: Unreported cases at the date of publication may have subsequently been reported.

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

This article was first published in De Rebus in 2014 (March) DR 48.

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