National Education Health & Allied Workers Union & another v Office of the Premier: Province of the Eastern Cape & another (2011) 32 ILJ 1696 (LC)

Principle:

A recruitment process is not rendered unfair where an employer's policy allows flexibility as regards process, particularly where the affirmative action policy is rational and goal directed, authorising targeted recruitment to be used to address gender or racial imbalances.

Facts:

A Coloured female was recruited ahead of the Applicant, a black male. It was common cause that she scored less points than the Applicant. It was however not disputed that the affirmation action policy was rational and goal-directed which made the targeted recruitment in the circumstances of this case appropriate. The targeted recruitment was directed at affirming a coloured female with the view to addressing both the gender and the racial imbalance at that particular time.

The Applicant alleged that the process followed in selecting the Coloured female was irregular in that the submission of the CV's for the application for the position was already closed at the time the employer invited her to submit her CV. The applicant did not dispute that the employer had a right to embark on a targeted recruitment. His argument was that in the event where the employer has initiated the recruitment process by way of advertising, the targeted recruitment can only be utilised after that process, ie once the advertising process is complete, no suitable candidates should be sought outside of that process, if it was felt equity objectives would not be achieved among those who had applied.

The court was not persuaded that this procedural element rendered the targeted selection process unfair in terms of the employer's recruitment policy.

Extract from the judgment:

[21]   The case of the applicant as I understood it is mainly based on the complaint that he was discriminated against because an irregular process was followed in the appointment of the second respondent. The essence of his case is that the process followed in selecting the second respondent was irregular in that the submission of the CV's for the application for the position was already closed at the time the third respondent was invited to submit her CV.

[22]   The applicant does not however dispute that the respondent has a right to embark on a targeted recruitment in the selection and appointment of its employees. His argument is that in the event where the respondent has initiated the recruitment process by way of advertising, the targeted recruitment can only be utilised after that process i.e. the advertising process is complete and no suitable candidates could be found or by way of stopping the process if it is apparent that the objective of finding a candidate that would address the equity objectives is not found in those who had applied.

[23]   In support of his contention that the appointment of the second respondent was irregular, the applicant relied on the decision of the then industrial court in George v Liberty Life Association of SA 1996(8) ILJ 986(IC). The interpretation he gives to that decision is that an employer can not deviate from procedures that it had agreed upon without good reasons.

[24]   The decision in the George's case was based on the unfair labour practice in terms of s46 (9) of the 1956 Labour Relations Act....

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[27]   As indicated earlier in this judgement, the case of the applicant was not that the targeted recruitment was not permissible but that it was not properly done. In dealing with this issue and the broader issue of the alleged discrimination it should be borne in mind that the applicant led only one witness, Mr Khelekheta. The applicant did not himself testify. It is also important to bear in mind the number of concessions made by Mr Khelekheta and in particular the fact that if the respondent did not affirm the third respondent on the basis of gender, the division in question would have had less than 20% representivity. Without the affirmation of the 3rd respondent the division would have had six senior managers who were males. Even after the appointment of the third respondent the division still remained below 40 % in terms of representivity.

[28]   Turning back to the issue of procedural complaint by the applicant, I agree with Mr Wade for the respondent that the core of the case so far made by the testimony of Mr Khelekheta has to do more than anything else with the complaint about the procedural aspect of how the recruitment of the third respondent was effected. That does indeed pose a challenge to the case of the Applicant as this court jurisdiction is limited to adjudicating over discrimination claims in terms of the provisions of the EEA. I also agree that no case has been made in terms of the allegation of discrimination.

[29]   It is common cause that the third respondent scored less points than the Applicant. It has however not been disputed that the affirmation action policy of the first respondent was rational and goal directed which made the targeted recruitment in the circumstances of this case appropriate. The targeted recruitment was directed at affirming a coloured female with the view to addressing both the gender and the racial imbalance at that particular time.

[30]   The version of Mr Khelekheta is that the procedure followed in the appointment of the second respondent was irregular in that the respondent did not follow the provisions of the recruitment Policy: Eastern Cape Provincial Administration. When cross-examined why he regarded the procedure as irregular Mr Khelekheta said that the first respondent ought to have either stopped the recruitment process or completed it and if no suitable candidate was found to then embark on a targeted recruitment. He could not however point out in the policy a provision supporting his version. It should be noted that the policy on recruitment is in a form of a collective agreement.

[31]   The version of the applicant is unsustainable if regard is had to the structure of the recruitment policy. The structure of the recruitment policy does not even support any possible inference that the parties intended the process contended by Mr Khelekheta....

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[36]   In the light of the above I am of the view that the Applicant's claim stands to fail. I do not however believe that the cost should in law and fairness follow the result.

[37]   In the premises the Applicant's claim of unfair discrimination is dismissed with no order as to costs.