McPherson v UKZN & another [2007] JOL 20803 (LC)

Principle:

It may be unfair discrimination to limit the eligibility for a post to existing permanent staff.

Facts:

An employee had been employed in a five-year post as the Head of the School of Physical Science at a university. As a result of a merger with another university, some posts were internally advertised to "any permanent member of staff" at the level of senior lecturer. He applied for the post of Head of the School of Physics (effectively his old post renamed in the new merged stricture), but his application was not considered. He referred a dispute to the CCMA but it was not resolved. Since he had obtained a lucrative post at another university, he applied for compensation from the employer on the grounds that it had unfairly discriminated against him as a non-permanent member of staff. The employer denied that the exclusion of temporary staff amounted to discrimination under section 6(1) and (2) of the Employment Equity Act 55 of 1998. Its Employment Equity Policy needed to be measured against the operational requirements of the university.

The Labour Court held that there was overwhelming evidence that the employer had in its employ a sizeable number of temporary staff. The employee's position was not isolated. The eligibility requirement was therefore discriminatory to the members of staff who had been appointed on a temporary basis. Although discrimination can be justified in law, justification focuses on the purpose and reason for the discrimination. The employer's reasons based on operational requirements came across as requirements based on the preference of the employer's senior employees. The employee was entitled to compensation equivalent to six months remuneration.

Extract from the judgment:

[1]   This is a claim about an unfair discrimination allegedly meted out to the applicant when the first respondent failed to consider his application for the position of Head of School of Physics. The applicant seeks an order wherein the respondent is directed to re-advertise the said position with the exclusion of the requirement that any permanent academic member of staff, is eligible for appointment as the Head of School. In the first alternative prayer, he seeks to have the appointment of the second respondent, as Head of School, set aside. In that event, he seeks to have his application for the position, accepted and considered together with all other applications for the position of Head of School, for a fresh appointment. In the second alternative, he seeks to be awarded compensation in an amount to be determined by this Court...

[8]   The issue of eligibility for appointment to posts created by the merger process was a subject of some consultation and debate during the process leading up to the merger. The extent to which this issue was raised for discussion and Council's involvement therein are enshrined in the bone of contention between the parties.

[9]   The post of head of school is a contract post for three years. Had the applicant been appointed to it, the three years of the contract would have coincided with the remaining three years from his original 5-year contract. The first respondent appointed the second respondent as head of School of Physics. The effect thereof was that the applicant, who occupied the position of head of School of Physical Science at UDW, had to vacate the post, in favour of the second respondent who took up the post for the merged entity.

[10]   The applicant regarded the first respondent's policy of exclusion as unfairly discriminatory and he referred a dispute which had arisen between him and the first respondent to the CCMA for conciliation. When a conciliation hearing was still pending, he approached this Court by way of an urgent application seeking to interdict the first respondent from proceeding with interviews of candidates or the making of the appointment to the post, pending the finalisation of the dispute he had referred to the CCMA. He was not successful in obtaining an interdict. When conciliation failed to resolve the dispute, the applicant referred it to this Court by means of statement of claim filed with the Registrar on 18 March 2005.

[11]   On 21 June 2005 the applicant served a written notice of resignation to the first respondent, through the second respondent. After the exchange of some correspondence between the parties, the first respondent accepted the applicant's resignation, which took effect from 31 July 2005. On 1 August 2005, the applicant took the post of dean of the Faculty of Agriculture, Science & Technology at the North-West University, Mafikeng campus. The position of deanship taken by the applicant had more lucrative benefits totalling R473 430 than those he had been receiving either from the first respondent or from UDW, which stood at R330 000...

[13]   It is beyond dispute that the eligibility of candidates for the post of head of School of Physics was limited in favour of the permanent academic staff members. Any of the staff members of the respondent who were on temporary appointments were expressly excluded. ..

[15]   Mr Chadwick, for the respondents, referred to sections 1, 2, 5, 6 and 11 of the Employment Equity Act 55 of 1998 ("the EEA") and to various cases in which the mentioned sections found applicability. It was his submission that the following important principles emerged from the cited authorities with reference to the present case: An important consideration was whether the differentiation between employees was: whether it was based on one of the prohibited grounds mentioned in section 6 of the EEA; or whether it was discrimination which undermined the dignity and self-respect of the "victim"; Whether the differentiation or discrimination was unfair; Whether the differentiation or discrimination was arbitrary or whether it might be justified on some rational basis, for instance whether there might be some not insignificant commercial rationale for it.

[16]   His submission was that the alleged discrimination: did not fall within one of the prohibited grounds mentioned in section 6 of the EEA; was not in any sense designed, or likely to impair dignity and self-respect;was not arbitrary, ie there was a commercial rationale and need for the discrimination.

[17]   He argued that when framing a policy of the nature in question, the policy must needs cater for the general situation rather than the circumstance of particular individuals. Accordingly, it was no answer for the applicant to contend that because his contract would in any event expire after the term of head of school and/or because he might personally have been subjected to rigorous examination, when applying for his post, that was the reason to condemn the policy as being discriminatory and unfair.

[18]   He averred that the provisions of the policy were to be measured against the operational requirements of the first respondent, in the general situation; it was not to be measured against its effect on individual cases. This, he said, was not a case in which the policy was targeted at the applicant personally.

[19]   He said that there was no justification for the claim based on badly wounded feelings as a result of being ruled ineligible as the applicant had elected to accept other employment where he enjoyed greater status and benefits than of a head of school of the first respondent.

[20]   He submitted that the appointment of a head of school constituted a deployment rather than a promotion. As a consequence the exclusion from eligibility would not constitute an unfair labour practice or would impose a particularly difficult burden on the first respondent. He said that the first respondent's decision to exclude the applicant was neither irrational nor prompted by an improper motive.

[21]   Mr Seery, who appeared for the applicant, submitted that an appointment for a head of school was to be made in terms of the University's Employment Equity Policy. The policy: did not differentiate between contract and permanent employees but applied to both; defined "appointable" as a person who not only met the minimum requirements of the job, but who was likely to be successful in the job; endorsed the principle of equal opportunity for all; prescribed that appointments were to be based on individual merit; specified the content of the advertisements for the posts being advertised; appointments were based on two levels of competency, ie minimum requirements being satisfied and the potential to be successful in the job. There was nothing in the policy that specifically stated that contract employees could be excluded from applying for posts. The exclusion of contract employees from applying for certain posts could be "catered for" under the requirement of "operational necessity", which in the present case was not conceded to be applicable.

The first respondent made a generalised assumption that permanent employees were more likely to remain as functionaries within their respective departments after their tenure as heads of school. A further assumption that followed was that contract staff would, by choice, not remain within their departments. The first respondent produced no statistics justifying its assumptions. The evidence of the second respondent was that 60% of the heads appointed in 2005 have already resigned their positions.

For a head of school to be close to the discipline, to command respect, to be part of the ranks of the discipline, to supervise post-graduate students and staff workload, the incumbent of the post does not need to be a permanent member of staff. The screening process when appointing the head of school would be able to exclude those contract members of staff that were not subjected to a rigorous screening process when they were employed, if they were not suitable for that position...

The policy of the first respondent was such that if there was no suitable (permanent) employee within the institution (for appointment as head), the first respondent would look externally. It was manifestly unfair to look outside of the staff compliment and not consider appointing contract members of staff as heads merely because of their employment status within the institution.

The post of head of school was a promotional post (from associate professor) carrying with it extra responsibility, authority and benefits. The applicant was prevented from following his chosen progression path merely because he was a contract employee. It must be accepted that contract employees who met the minimum requirements to apply for the post (bar the status of permanency) have been treated less favourably than those with permanent status. The less favourable treatment was discriminatory and unfair.

Analysis

[22]   The recruitment and selection process of the head of school for the first respondent is governed by the University's Employment Equity policy. When the first respondent set out the role of head of school, it provided a preamble which states, inter alia, that:

"The Head of School is expected to provide leadership in scholarship and research within the school whilst, at the same time, ensuring the effective administration of the School. Heads of School, therefore, are academic administrators who are appointed on the basis of administrative ability, high academic standing and considerable academic experience.

The Head of School has ultimate responsibility for the overall efficient and effective functioning of the School. The Head of School reports to the Dean of the Faculty. He or she is accountable to the Faculty Board, College Academic Affairs Board, and the Senate for proper management of the School in terms of the policies, vision, mission, goals and core values of the University. The Head of School will be expected to undergo necessary training and induction in areas such as financial management, human resources and dispute resolution."

[23]   The first respondent described the eligibility requirement for heads of school as: "Any permanent academic at the level of Senior Lecturer or above is eligible for appointment as Head of School." The descriptive words "Any permanent academic" are the basis for the claim before me, which is premised on unfair discrimination or unfair labour practice.

[24]   Section 9 of the Constitution of the Republic of South Africa, 1996 ("the Constitution") prohibits both the State and any person from discriminating [against] anyone on the basis of any one or more grounds as listed in subsection (3). Section 10 of the Constitution accords everyone inherent dignity and the right to have their dignity respected and protected. While the applicant had not sought to place reliance on any ground listed in section 9 of the Constitution, in my view, it remains important to keep in mind the constitutional imperative against discrimination.

[25]   Discrimination against an employee, directly or indirectly based on any arbitrary ground is prohibited by section 187(1)(f) of the Act, which section lists some of the grounds. The EEA is more detailed in the prohibition of discrimination in the workplace. Section 2 of the EEA reads:

"2. Purpose of this Act:

The purpose of this Act is to achieve equity in the workplace by-

(a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workplace."
[26]   Section 3 of the EEA deals with the interpretation of the EEA and reads, inter alia:

"This Act must be interpreted-

(a) in compliance with the Constitution;
(b) so as to give effect to its purpose;
(c) taking into account any relevant code of good practice issued in terms of this Act or any other employment law; and
(d) in compliance with the international law obligations of the Republic, in particular those contained in the International Labour Organisation Convention (111) concerning Discrimination in Respect of Employment and Occupation."

[27]   Articles 1 and 2 of the International Labour Organisation Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation read:

"Article 1:

1.For the purpose of this Convention the term 'discrimination' includes:

(a)Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.

2.Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

3. For the purpose of this Convention the terms 'employment' and 'occupation' include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

Article 2:

Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof."

[28]   Section 6(1) and (2) of the EEA prohibits unfair discrimination and reads:

"6.Prohibition of Unfair Discrimination:

(1)No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

(2)It is not unfair discrimination to-

(a)take affirmative action measures consistent with the purpose of this Act; or
(b)distinguish, exclude or prefer any person on the basis of an inherent requirement of a job."

[29]   The first respondent is the employer against whom there is an allegation of unfair discrimination and therefore has to establish that it acted fairly in the circumstances. The case of the first respondent is that the provisions of the policy in question ought to be measured against the operational requirements of the University in the general situation and not against its effect on individual cases. Seen in that perspective, therefore, the distinction or exclusion of staff on temporary posts did not amount to discrimination. However, should it be found to be discriminatory, it is not unfair discrimination. The evidence of the first respondent reminded me of what Willis JA had to say in the case of Woolworths (Pty) Ltd v Whitehead [2000] 6 BLLR 640 (LAC) [also reported at [2000] JOL 6374 (LAC)-Ed] at 665-666. He commented:

"A decision made in regard to a single individual can hardly be described as a 'policy' or 'practice'. The decision of the employer in this case is, furthermore, not indicative of any policy or practice which it has adopted towards pregnant women. As I have already indicated above, there is nothing remotely to suggest that this particular employer has adopted an attitude akin to: 'We do not want women who are or may fall pregnant to work for us'."

The first respondent's witnesses testified in the present case that a policy was adopted, the effect of which was that the first respondent was saying "We do not want temporary staff to work for us as Head of School".

[30]   It was the evidence of the applicant (which was not disputed) that UDW had a number of staff who were appointed on temporary basis. The rationale underlying the approach was the uncertainty of the status of UDW due to a transformation which it was known was pending. There was also evidence that the UN itself had some temporary staff in its employ. Therefore, when the first respondent came into existence, it would have taken into its employ quite a number of staff who had been employed on temporary basis, inter alia, because of the uncertain future of the institutions whence they came. These staff members could very well be South Africans who, but for the pending change, could have been taken on permanent basis. There may very well be other underlying reasons why temporary staff were taken on at the time. There is therefore overwhelming evidence before me that the first respondent has in its employ a sizeable number of its staff who are on temporary employment. The position of the applicant was therefore not an isolated case. The first respondent's policy is that none from the group of temporary staff may be appointed as heads of a school. That itself indicates that the members of staff on temporary employment belong to a vulnerable group.

[31]   There is undisputed evidence that in three schools, the first respondent appointed temporary senior staff as "Acting Heads" for a period that would not be longer than 6 months for each. The applicant, while on a temporary post, was appointed by UDW as a head of school. There are therefore identifiable staff members of the first respondent who are adversely affected by the eligibility requirement of a permanent appointment of a head of school. The eligibility requirement is therefore discriminatory to the temporary appointed staff members of the first respondent.

[32]   The first respondent places reliance, for the discriminatory eligibility requirement, to sections 6(2)(b) of the EEA to show that it acted fairly. Commenting on the justification of unfair discrimination, Murphy AJ (as he then was) in the case of Independent Municipal & Allied Workers Union & another v City of Cape Town (2005) 26 ILJ 1404 (LC) [also reported at [2005] JOL 15042 (LC)-Ed] had this to say:

"Unfair discrimination can be justifiable in our law. The justificatory stage is where the respondent seeks to justify otherwise unfair discrimination. In human right or constitutional law the notion of 'unfair' discrimination focuses on the holder of the right, whereas justification focuses on the purposes, actions and reasons of the government, and not the rights of the holder. Factors that would or could justify interference with the right to equality are to be distinguished from those relevant to the enquiry about fairness. The one is concerned with justification, possibly notwithstanding unfairness; the other is concerned with fairness and with nothing else - President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) at 36B-C."

[33]   A subcommittee appointed by the Council of the first respondent to advise Council on the roles and responsibilities of various senior positions in the merged universities presented its report entitled "Faculty Management: Role and Responsibilities, Recruitment and Selections of Faculty Management and Leadership" to the Senate of the first respondent on 26 October 2004. Final charges were effected on the document and the Senate adopted it. The adopted document was then forwarded to Council. The report which is dated 19 October 2004, was quite comprehensive as it dealt with various issues extensively.

[34]   The only eligibility requirement which appears to have been the subject of discussion with the Senate appeared in the report initially as:

"Any permanent academic at the level of Senior Lecturer or above will be Eligible to be an Academic Co-ordinator." "Senior Lecturer" was subsequently altered to "any lecturer". Again in this group, an academic co-ordinator could only be appointed from permanent academic staff member.

[35]   The report of the subcommittee is conspicuously silent on the reasons underlying the appointment of head of school and an academic co-ordinator having to come only from permanent academic members of the first respondent to the exclusion of temporary academic members. It is noteworthy that this limitation was not made applicable to other categories of the academic staff.

[36]   The principle of continuity suggested by the first respondent is, in any view, not convincing. The first respondent could very well have applicants for the head of school who are on a 5-year contract which is in its initial stages. Appointing one such as head of school for the maximum period of 3 years would still bring about continuity after the end of the 3-year term. As evidence showed, permanent staff are not immune from tendering resignation as staff members soon after the 3-year term. A staff member who has been a head of school may also have to go on retirement. It is noteworthy that the first respondent has appointed temporary staff as "Acting Head of School".

[37]   I can conceive of no bar against a temporary staff member achieving academic excellence and through extensive research work, to earn respect by his or her peers. Respect in a discipline may therefore be well earned by a staff member notwithstanding the temporary nature of his appointment. It remained undisputed that the applicant earned such respect with his peers at UDW. He was both an academic leader and a manager.

[38]   As I consider the reasons preferred for the inherent operational requirements of the first respondent, I find none that I can regard as permanent attributes or quality, forming an essential element of such requirements. The reasons given, in my view, come across as requirements based on the preferences of first respondent's senior employees. [39]   The conclusion is inevitable, in my view, that the eligibility requirement of a head of school set by the first respondent is unfairly discriminatory.

[40]   From 27 November 2004, when the applicant was informed by the first respondent that he regrettably did not qualify to apply for the head of school position, till 21 June 2005, when he served the first respondent with a letter of resignation he had to suffer the humiliation of an unfair discrimination at the hands of the first respondent. He is the one who took the initiative of ameliorating or mitigating the intensity of his suffering.

Such suffering was indeed short-lived as he found himself a better position elsewhere. In his evidence and through an amendment of the relief he seeks, he made it abundantly clear that he would not like to consider coming back as an employee of the first respondent. That secures the position of the second respondent. In my view, he is entitled to some salutary compensation. I have taken into account the undisputed fact that he has ascended to a higher position which is seeing to it that he is financially better off. I am of the view that the just and equitable compensation to the applicant should be the equivalent of 6 months' remuneration calculated at the rate of remuneration he was then receiving on 31 July 2005.

[41]   Accordingly, the following order will issue:

1.The first respondent is ordered to pay 6 months' remuneration to the applicant, calculated at the rate of the remuneration the applicant was receiving on 31 July 2005.
2.The payment is to be made within 14 days from the date hereof.
3.The first respondent is to pay the costs of this claim.