In Landman v Minister of Agriculture, Forestry and Fisheries and Another [2024] 7 BLLR 746 (LC) a white male candidate, Mr Landman, alleged that he was unfairly discriminated against on the basis of race and gender when he was excluded from the shortlist for a promotional post of Director for Employee Relations in which he had been acting for 14 years. The Department of Agriculture, Forestry and Fisheries (the Department) shortlisted five women and these women were all found to be unsuitable for the position during the interview phase. The Department then did not appoint anyone to the position and reserved the position for an African female while they embarked on a headhunting exercise. An African female was then subsequently appointed. Mr Landman lodged a grievance. When he was unhappy with the outcome of the grievance he referred an unfair labour practice dispute to the bargaining council. The matter was not resolved at the bargaining council and Mr Landman then launched an application in the Labour Court (LC) alleging unfair discrimination in terms of s 6 of the Employment Equity Act 55 of 1998 and the Constitution. Mr Landman sought promotion to the grade of director with compensation for that role or an order setting aside the appointment of the successful candidate and directing the Department to re-advertise the position.
The minister argued that the role had been reserved for an African female candidate for employment equity purposes and that Mr Landman was not the only male who was not shortlisted. According to the Department there was a rational justification for the appointment of the African female to the position.
In this case the Department was a ‘designated employer’ under the Employment Equity Act and, as such, was required to have an employment equity plan in place setting out its employment equity objectives and affirmative action measures. However, the Department’s employment equity plan had lapsed, and the decision had been made in terms of a draft employment equity plan, which had not been properly consulted on. Furthermore, the Director General had rejected the plan and made recommendations in order to ensure compliance with the Employment Equity Act, which recommendations had not yet been implemented.
The LC considered the judgment in Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality and Another [2016] 7 BLLR 685 (LC), in which the City of Tshwane did not shortlist a candidate based on race and gender and relied on an employment equity plan that had lapsed to justify this. The court held in that case that an action taken to further affirmative action must be measurable. It would not be possible to measure and evaluate if the non-shortlisting would further the employer’s employment equity objectives if there was no employment equity plan in place. Therefore, if the employment equity plan had lapsed it cannot be implemented and any decisions made on the basis of that lapsed plan were discriminatory and unfair and did not have justification.
It was held that in this case Mr Landman would have had an opportunity to contend for the post but for the discrimination. Therefore, the exclusion from the shortlist was unfair. There was, however, no guarantee that he would have been appointed had he been shortlisted and, therefore, he was not entitled to ‘protected promotion’. In this regard, reference was made to the case of Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (LC) (unreported case no JR369/15, 10-5-2019) (Whitcher J) in which it was held that protected promotion should only be awarded if it can be established that the applicant is the best candidate for the job. What needs to be satisfied is that but for the unfair discrimination the employee would have been promoted.
The court held that the Department committed an unfair labour practice against Mr Landman by not shortlisting him. Therefore, compensation was awarded equal to five months’ salary at the rate he was earning when he was not shortlisted.
In Passenger Rail Agency of South Africa and Others v Ngoye and Others [2024] 7 BLLR 706 (LAC) three senior managers sued for breach of contract and specific performance in respect of unlawfully repudiated contracts. In this regard, in 2021 the employment contracts of three employees were summarily terminated on the grounds that the normal five-year fixed-term contract on which all Passenger Rail Agency of South Africa (PRASA) executives were employed had been exceeded. The employees relied on s 77 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and filed an urgent application in the Labour Court (LC) seeking that their contracts be declared still in force and that the termination be set aside and they be retrospectively reinstated. The LC found that the dismissals were unlawful and granted the relief sought.
On appeal, PRASA raised a technical argument that the case was based on unlawfulness and not breach of contract, and they had not demonstrated that any clause in the employment contract had been breached. The Labour Appeal Court found that the breach was proven but specific performance was not granted because it was found that the continuation of the employment relationship would be difficult for the employer in the circumstances. It was held that while the High Court has the jurisdiction to determine a breach of contract claim under the BCEA by dismissed employees these claims of unlawful dismissal would be decided on more limited grounds than unfair dismissal claims under the Labour Relations Act 66 of 1995 (LRA).
The court held that because the employees did not rely on the LRA the only relief to which they could be entitled was damages or specific performance. The employees had not proven any damages and had not claimed damages, so it was found that they were not entitled to any. As regards specific performance, it was found that the courts must exercise discretion to determine whether the parties should abide by the contract, even if one party does not wish to continue with it. While reinstatement under the LRA is only refused in limited circumstances, there are no specific rules for specific performance of an employment contract. It was found that employment contracts were personal in nature and employees in management positions are involved in the running of the business which may make it difficult for the employer to continue the relationship with such employees. It was held that the LC had misdirected itself in failing to exercise its discretion to determine whether it was appropriate to grant specific performance in the circumstances and granted the relief simply because there had been a breach of the employment contract. It was found that the breach of contract did not automatically result in specific performance and the appeal was upheld with costs.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2024 (Sept) DR 43.
