Willemse v Patelia NO & others (2007) 28 ILJ 428 (LC)

Principles:

  1. Affirmative action measures should not be applied in an arbitrary or unfair manner. Where an employer fails and or refuses to promote an employee by reason of promoting representivity levels from designated groups, then, if that employer had no employment equity plan whatsoever, it may be very difficult to determine whether such discrimination as it may have perpetrated in its refusal to promote an employee constituted unfair discrimination or not.

  2. When applying affirmative action, employers should consider a variety of factors, of which past disadvantage is only one. Retention of skill and the efficient operation, particularly of State organs, clearly also require consideration.

  3. The failure to consider the disability of an applicant may render the appointment process unfair.

Facts:

The applicant applied for the position of Director: Biodiversity Management in the Department of Environmental Affairs and Tourism (“the DEAT”). He was recommended for the position by a selection committee but the acting Director General at the time did not accept the recommendation “due to the fact that the DEAT’s human resources component must be representative of the demographics of the country as mandated by the Employment Equity Act and the transformation process”. This decision led to an unfair labour practice dispute involving the unfair conduct of the DEAT in failing or refusing to promote him being declared. This dispute was eventually referred to the General Public Service Sectoral Bargaining Council for arbitration. The arbitrator found that no unfair labour practice had been committed by the DEAT. The applicant then approached the Labour Court for the review of this award of the arbitrator.

Extract from the judgment:

[21]   I am of the view that the present case involves exactly this inquiry. Dr Willemse in my view established that he applied for a position and, having been recommended for the position, that the DEAT decided not to appoint him in order to address its representivity. The fact that the DEAT then advertised the same or a slightly different position does not detract from the fact that it had made a conclusive decision not to appoint Dr Willemse in order to appoint someone from a different gender and race group. On the facts, with which I shall in due course deal with, patently the reason for not appointing Dr Willemse amounted to discrimination based on both race and gender. It clearly required the employer to justify such discrimination by showing that it was fair. The failure by the arbitrator to realise the distinction had the result that he did not apply his mind at all to this most crucial question whether the DEAT acted fairly in refusing to promote Dr Willemse, which question I am satisfied was indeed before him and did not fall away because Dr Willemse did not later apply for the same or a similar position. This in my view in and by itself renders the whole of the arbitrator’s award reviewable and requires that it be set aside.             
[31]   Much was made by Dr Willemse, both in the arbitration and on his behalf before me, of the absence of an employment equity plan on the part of the DEAT.  He strenuously argued before the arbitrator that the absence on the part of the DEAT of a formal employment equity plan, in and by itself justified the conclusion that he had been unfairly discriminated against. It was argued by Mr Ackermann that, for an employer to apply a form of discrimination in pursuit of its employment equity goals, it has to be done on a rational and fair basis.  It was suggested that, to ensure that such discrimination as may take place in pursuit of employment equity is fair, there should be an employment equity plan in place. As the DEAT did not have an employment equity plan, so continued the argument, a rational basis was absent when the acting Director General refused to accept the recommendation by the selection committee to promote the applicant. Accordingly it was submitted that, in the absence of an employment equity plan, the DEAT had acted unfairly in refusing to promote Dr Willemse by reason of its affirmative action programmes and in order to promote representivity in the absence of an employment equity plan.
I do not agree with this proposition. 

[32]   Although the DEAT, through its human resources manager, was reluctant to admit that it did not have an employment equity plan at the time relevant hereto, having regard to the documents placed before the arbitrator, it is apparent that, at the time Dr Willemse's promotion was refused, the DEAT indeed had no employment equity plan. 

[33]   In terms of section 20 of the EEA, a designated employer, which the DEAT is, must prepare and implement an employment equity plan… 
 
[34]   Obviously, an employment equity plan is helpful as a framework within which to determine the fairness of an employer's discriminatory decisions when it purports to make appointments, or refuse to make them, in furtherance of the employer's employment equity objectives.  In view of the potential discriminatory nature of affirmative action measures, it is of course important, when one has to assess whether such discrimination as may have been perpetrated by an employer in pursuit of affirmative action goals, was fair or not, for a reviewing court to see exactly how and in terms of what the employer exercised its discretion.  In this process one of the issues to be determined will be whether the employer had interpreted its own employment equity policies and plans properly.  Affirmative action measures should not be applied in an arbitrary or unfair manner. Where an employer, like in the present instance, fails and or refuses to promote an employee by reason of promoting representivity levels from designated groups, then, if that employer had no employment equity plan whatsoever, it may be very difficult to determine whether such discrimination as it may have perpetrated in its refusal to promote an employee constituted unfair discrimination or not.  Whilst the DEAT did not have a formal employment equity plan at the time the acting Director General refused the recommendation to promote Dr Willemse, the evidence before the arbitrator did disclose that the DEAT was operating within a framework of policy statements as well as targets with reference to its employment equity goals and objectives. The DEAT had an employment equity policy statement and race, gender and disability profiles for the Department. It also had compiled a progress report in respect of the transformation process and it had been submitting annual report data to the Department of Labour as required by law. There accordingly was a determined or determinable framework within which the DEAT was to operate, and against which one can assess whether the conduct of the DEAT herein was fair and whether it constituted an unfair labour practice or not. It is apparent from both the recommendations of the selection committee and the evidence of the acting Director General that these parties all had regard, to some degree or other, to these policy statements and employee profiles when they acted in respect of Dr Willemse’s application. I am therefor satisfied that the fact that the DEAT did not have an employment equity plan as required by the EEA, does not in and by itself render the refusal to promote Dr Willemse unfair. I also do not believe that the absence of an employment equity plan is in and by itself a cause of action when dealing with the question whether the employer committed an unfair labour practice relating to its failure or refusal to appoint or promote an employee. I do not, however, need to decide this issue for purposes of arriving at a decision herein.

[42]   The DEAT did not in my view present any, or sufficient factual evidence in rebuttal of Dr Willemse's evidence that representivity levels targeted by the DEAT had been achieved by it. I am accordingly satisfied that, as a matter of fact, such targets for representivity as were set by the DEAT for black and female employees had been met, and in fact exceeded at the time Dr Willemse’s appointment was refused by the DEAT.

[43]   The DEAT argued before the arbitrator that Dr Willemse raised his disability too late and only during cross-examination of the DEAT's witnesses and that, accordingly, it had no opportunity to lead evidence to rebut this allegation. This complaint is in my view without any foundation and not justified as Dr Willemse had clearly already indicated this on his application form. He also raised it at a time in cross examination of the DEAT's witnesses when, if the DEAT wanted to take issue with this particular contention of Dr Willemse's, it had every opportunity to do so by the calling of further witnesses or even to request that Dr Willemse himself be recalled to be further cross-examined on this issue.  The DEAT elected not to do any of these. This complaint of the DEAT is a red herring and stands to be rejected.

[44]   The acting Director General's approach to the issue of representivity levels with regard to disability should be seen against the background of the evidence adduced on behalf of the DEAT by its human resources manager.  This witness was the appointed official accountable for the purposes of the EEA.  She testified that representivity levels in the disability group reflected the greatest need for action in the DEAT.

[45]   As stated, Dr Willemse had indicated on his application for the position that he had a disability. It will be remembered that the application for employment specifically indicated that certain information (race, gender and disability status) was relevant to enable the Department to comply with the EEA. As far as Dr Matlou was concerned, the gender issue was the most important one. He testified that he did not consider Dr Willemse's disability to be relevant. It can also nowhere be seen whether the selection committee considered this factor at all.

[46]   From Dr Matlou's evidence it is apparent that, to the extent, if at all, that he had regard to the fact that Dr Willemse had a disability, he disregarded it because, as he testified, he was of the view that a disability had to be such that it impaired Dr Willemse from doing his work. In this proposition of his he was patently wrong. I also believe, having regard to Dr Matlou’s evidence, this was an afterthought on his part. He in any event felt that it had no bearing on the particular case. In this he was also wrong in my view. Clearly he was obliged to take all relevant factors into consideration in deciding whether to accept or reject the selection committee’s recommendation.  It is further apparent that, to the extent that Dr Matlou did consider Dr Willemse's disability, if he did so at all, the acting Director General was influenced by the fact that the employees in the senior management services who were disabled were white males. It is apparent that he tried to reason in the arbitration that, within the disabled group itself, as there were no black disabled employees, it neutralised Dr Willemse’s disability as a factor that he ought to have considered.

[47]   It would also appear as if the acting Director-General applied preferential treatment within designated groups, with specific reference to gender. In doing so, it is apparent that he either totally disregarded Dr Willemse's disability status or he certainly did not have regard to the fact that representivity in the ranks of the disabled required the greatest need for action in the pursuit of representivity in the DEAT. 

[48]   It is further apparent that Dr Matlou over-emphasised the presence of white males, both generally, as well as specifically with reference to the fact that two white disabled males were already employed in this component of the DEAT. Dr Willemse’s stated disability was nevertheless a relevant factor which ought to have been properly considered by Dr Matlou, particularly having regard to the fact that disability representivity was the one area where the DEAT had experienced problems. I do not believe that there was any justification for the acting Director-General, in considering whether to accept or reject the recommendation that Dr Willemse be promoted, to disregard, it would appear in its totality, Dr Willemse's undisputed disability status and only to consider gender representivity.  This is in my opinion a particularly serious oversight, having regard to the fact that, at the level to which Dr Willemse applied to be promoted, gender representivity targets had been met, yet disability representivity targets had not been met, either at the SMS level, or in the DEAT as a whole. These were most relevant factors, which ought to have been given proper consideration.  This failure by the DEAT to properly consider and weigh up all the relevant facts applicable to Dr Willemse’s application, including his stated disability, contributed to the final conclusion that I have been driven to herein.

[49]   It is also relevant to bear in mind that the applicable policy at the time of Dr Willemse’s application was that, once representivity targets had been reached, merit would become the only consideration and all applicants will compete equally.

[58]   On the objective facts before me, what ought to have been properly considered by the acting Director-General when he arrived at his decision not to accept the selection committee’s recommendation, were at least the following relevant facts and factors:

·   The DEAT had at the time not only achieved its set target of 50% representivity at the SMS level of the DEAT as a whole, it had in fact exceeded it;

·   Likewise, of the gender target set, namely that of the 50% representivity level, one third should be women, this target had also been met;

·   The selection committee had correctly only considered the representativeness of the component where the post was located.

·   At SMS level of the component where Dr Willemse was recommended to be promoted to, only black females were employed, creating an imbalance in both race and gender representivity.

·   Promoting Dr Willemse to the SMS level of the component would have enhanced the skills needs in that component, whilst at the same time opening up a position at middle management level where representivity was lacking.

·   Representivity in respect of disability represented the one area where the DEAT had problems. Dr Willemse had indicated that he had a disability;

·   The policy applicable at the time in respect of employment equity dictated that, as soon as representivity targets had been met, only merit would be considered in making further appointments. There was no question about the merit of Dr Willemse’s appointment and that, on merit alone, he ought to have been promoted.

[59]   In addition to these facts and factors which ought to have been considered, I am further of the view that, both in respect of policies applicable to the DEAT, as well as in terms of the PSR, the selection committee was compelled to consider representivity but only of the component where the post was located.  This the selection committee did and in so doing it rationally concluded that, in the event of Dr Willemse being promoted, it would open up a position at middle management level, where representivity was lacking.  It is apparent from all the documentation and the evidence adduced before the arbitrator that the selection committee members most probably at least properly applied their minds to exactly what it stated, namely that the representivity levels were lacking in middle management of the component in question. It would appear, on the probabilities, that the selection committee had also properly assessed the fact that, at the SMS level, both the DEAT as a whole and the component in question had also already achieved the targets set. In rejecting this well considered and reasoned recommendation of the selection committee, the acting Director General did so single-mindedly on the grounds of enhancing gender representivity in the DEAT as a whole, ignoring, I believe in their entirety, all the factors which I referred to above which ought to have been considered.

[60]   I am in the result of the view that the acting Director General failed to apply his mind to all the relevant facts and factors which I have referred to above.  To the extent that the acting Director General did apply his mind, single-mindedly so it would appear to gender representivity, he erred in respect of the facts and the policy directives applicable at the time.  I have already referred to the fact that he clearly did not consider the fact that the DEAT had already achieved its target in respect of gender representivity, in addition to having achieved it in respect of black employees generally.

[84]   Having further regard to the fact that the one area of representivity where, on the DEAT's own admission action was required, namely in respect of disabled employees, there further appears no justification for the acting Director General either to disregard, or to not regard Dr Willemse's disability status as of sufficient importance to give it any, or proper attention.

[85]   I am accordingly of the view that the DEAT applied affirmative action herein in an arbitrary and unfair manner.

[86]   The only reason provided by the acting Director General for refusing to accept the recommendation of the selection committee was that as the selection committee had looked at the matter from a branch perspective he had done so Departmentally.  In doing so, so contended the acting Director General, he was of the view that gender representivity had to be advanced, which would not have happened had he approved Dr Willemse's recommended promotion.  Having regard to those reasons, the acting Director General's decision was not justifiable or rational in light of the facts and material to which he ought to have applied his mind, and having regard to the facts as contained and stated elsewhere herein, particularly having regard to the fact that the DEAT had already achieved its set targets of representivity, both in respect of blacks and women.  At the same time, the DEAT had not achieved its set targets in respect of representivity levels of disabled employees, a designated group to which it could not be contested Dr Willemse belonged.

[87]   When applying affirmative action, employers should consider a variety of factors, of which past disadvantage is only one. Retention of skill and the efficient operation, particularly of State organs, clearly also require consideration.  According to the evidence in the present case, the acting Director General confined himself to gender representivity only when deciding not to promote Dr Willemse.

[90]   I have accordingly conclusively been persuaded that Dr Willemse was unfairly discriminated against when the DEAT refused to promote him on grounds of gender and race. He ought to have been promoted and I am particularly fortified in my conclusion by the well-reasoned and properly considered recommendation from the selection committee, who in terms of the prescriptions contained in the PSR, also consisted apparently of only historically disadvantaged persons.

[91]   I am accordingly of the view that DEAT through the acting Director General committed an unfair labour practice when it refused to promote Dr Willemse in or about May 2002.

[93]   In the result I make the following order:

  1. The third respondent’s refusal to promote the applicant is held to be an unfair labour practice.

  2. The third respondent is ordered to ensure that, as from 1 June 2002 the applicant, with retrospective effect, receives the same salary and benefits he would have received had he been promoted to the post of Director: Biodiversity Management with effect from 1 June 2002.

  3. The third respondent will be entitled (but not obliged) to give effect to this order by granting the applicant protective promotion in terms of the Public Service Code.

  4. The third respondent is ordered to pay the applicant's costs of suit herein.