Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 26 ILJ 765 (LC)

Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 26 ILJ 765 (LC)

Principle:

Reliance on the race of an applicant for employment is legitimate and does not amount to racial discrimination. Such reliance is consistent with taking affirmative action measures consistent with the purpose of the EEA and thus in accordance with section 6(2)(a) of the EEA which provides that it is not unfair discrimination to do so.

Facts:

The applicant, a white male, alleged that he was unfairly discriminated against and sought an order in terms of s 50(2) of the Employment Equity Act 55 of 1998 directing the respondent to place him retrospectively in level, rank and scale to that of a level 13 employee, commensurate with the position of Director: Engineering and Technical Support. In the alternative he sought an award of damages or compensation. The applicant’s claim arose out of his unsuccessful application for appointment to the post of Director: Engineering and Technical Support. He alleged that his non-appointment to the post amounted to unfair discrimination on the grounds of race, his application having been turned down in favour of a coloured male.

Extract from the judgment:

Although the present matter has been pleaded, constructed and argued within the parameters of the EEA, which has at its heart this conception of equality, an appreciation of the substantive and restitutionary notion mandated by the Constitution has been singularly absent in the parties’ presentation of their cases. The applicant’s broad claim that he is entitled to equal treatment which is colour blind fails to get beyond a conception of formal equality and non-discrimination which requires identical treatment. The respondent, on the other hand, has met the claim within the applicant’s paradigm with a defence that the preferred candidate, a member of a designated group, was chosen on merit and insofar as equitable representation on the basis of race was a consideration, it was merely of secondary importance. The respondent’s affirmative action defence therefore strikes me as somewhat muted. Obviously, the respondent must plead its case on its own interpretation of the facts and is entitled to a decision on the merits of its arguments supported by the evidence. Nevertheless, one cannot avoid the impression that it too regards affirmative action measures as a suspect category and in anticipation of strict judicial scrutiny opted to build its case primarily on an appointment based on merit and an assertion of remedial equality less confident than one might otherwise have expected from an organ of state charged with setting the pace.

As far as onus is concerned, it is incumbent on the applicant to show that he was discriminated against on the basis of his race. Once such is established, the respondent bears the onus of establishing that the discrimination was fair (see section 11 of the EEA).

The thrust of the applicant’s case is that by virtue of his experience and qualifications he was the most suitably qualified and skilled candidate for the post of Director: Engineering and Technical Support and was so far ahead of the successful candidate, Mathys, that the only reasonable inference to be drawn was that Mathys was appointed solely on the basis of his race and membership of a designated group.

In its response to the applicant’s statement of case, the respondent, as already explained, based its defence on Mathys’s merit as a candidate. Mathys, it was contended, was selected as the most suitable candidate by the selection panel based on his general profile and his competencies. The panel was impressed by his confidence, professionalism, strategic knowledge and relevant experience in and exposure to all the critical post requirements. In spite of the applicant’s extensive experience, qualifications and experience acting in the post, he scored less than Mathys in the interview. To the extent that affirmative action considerations played any role, the selection panel had regard to the numerical targets contained in the respondent’s employment equity plan in terms of which both white and coloured males were adequately represented, but considered the appointment of a coloured male as preferable to that of a white male, because white males were significantly over represented, whereas coloured males were not.

The applicant’s contention that he was unfairly discriminated against on the basis of race is basically founded on three pillars. The first is that he was obviously the most suitably qualified candidate for the position and was informed as much. Secondly, the successful candidate, Mathys, did not meet the threshold criteria of the job as advertised. Thirdly, Mathys was not in fact appointed on merit, but on the basis of his race.

….The applicant’s assumption that his qualifications and experience ought to have been sufficient to secure him the job assumes a notion of suitably qualified that is not consistent with the policy in Exhibit F or sub-sections 20(3) and (4) of the EEA which all clearly recognise potential or the “capacity to acquire, within a reasonable time, the ability to do the job”. In other words, the panel would have been entirely within its rights, had it done so, to have weighted Mr Mathys’s capacity and potential to do the job as more important than the applicant’s qualifications. Moreover, there is nothing in clause 13.5 of the now applicable policy which would prevent it from doing likewise in the future.

The second finding which the applicant urges me to make, in order to draw an inference of unfair discrimination based on race, is that when one has regard to the fact that Mathys did not meet the threshold requirements of the advertisement, the conclusion is inescapable that the overriding consideration was one race and was not based rationally on the qualifications of Mr Mathys.

There was much debate in evidence and argument about the exact level of Mathys’s qualifications. I tend to agree with the applicant that Mr Mathys was only in possession of an N3 Certificate and three N5 credits at the time of the interview. The debate was about whether such entitled him to be described in terms of the advert as a person in possession of a “high level technical qualification”. From the evidence presented, it is clear that an N3 Certificate is equivalent to a Senior Certificate and that an N5 would be equivalent to a tertiary qualification. Mr Cunninghame insisted in his testimony that Mathys’s qualifications could be described as a high level technical qualification. According to him, a high level qualification as envisaged in the advertisement would depend on the age and experience of the candidate. For a candidate in his thirties, a T4 would be the minimum, however, a NTC5 would suffice for an experienced person in his fifties.

For what it is worth, I am of the view that an N3 Certificate probably does not suffice as a high level technical qualification. Accordingly, there may be some merit in the contention that Mathys did not meet the threshold requirements. But, to my mind, it does not follow that any irregularity committed by the respondent in allowing him to be interviewed is of such a nature to permit me to draw an inference that the applicant has been discriminated against on prohibited grounds. Or that any such irregularity in granting Mathys an interview is sufficient to afford the applicant a remedy under the EEA. I caution to add that I make no finding that such an irregularity did in fact occur, particularly in view of the ambiguous terms in which the policy deals with threshold requirements. Exhibit “F” provides that threshold requirements for positions are those identified in the advertisement. It goes on to provide that the applications of persons who do not meet the threshold requirements need not be considered further, but makes allowance for exceptional cases for persons lacking qualifications who are employed by the public service, permitting condonation provided the person undertakes further education. I am not persuaded that the policy obliges selection panels to exclude entirely persons who do not meet the threshold requirements, although Dr Carter in particular testified that interviews usually proceed on the basis that the threshold requirements have been met. Whatever the case, it does not follow that an irregular interview of one candidate means that the ultimate non-appointment of any of the others amounts to a form of unjustifiable racial discrimination, or that such of itself justifies any such inference. Some case could perhaps be made for an alleged unfair labour practice, based on an unsupportable decision to shortlist an unqualified candidate, but that is not the cause of action here.

The third leg of the applicant’s argument is that Mathys was not appointed on merit because he did not have the necessary skills and experience to be appointed to the post. Cunninghame’s evidence on Mathys’s abilities was to my mind convincing. Moreover, Mathys has proven to be a great success in the job and this evidence in particular remains unchallenged. Although Mathys certainly lacks formal qualifications, he has significant technical experience in the hospital system. He also has played a role in the management of the Engineering Department of Groote Schuur Hospital and at Red Cross Hospital served as Head of Clinical Engineering. The applicant by contrast has not worked at any of the major academic hospitals. While it is correct that a professional engineer such as the applicant would have advanced design skills based on a high level of academic knowledge, an engineering technician of the order of Mr Mathys would have significant practical skills and would have played a direct role in managing personnel and finances, thus producing observable or measurable results. Cunninghame also testified that at both Groote Schuur and Red Cross Mathys has been involved in a number of projects which had been well planned and executed. Since his appointment, Mathys has inherited the hospital renewal project and has excelled as a project manager operating with a R4 billion project budget to upgrade the provinces hospital services. Moreover, for the reasons elaborated earlier, the panel was justified in attaching weight to Mathys’s far superior computer knowledge and better communication and interpersonal skills. In the premises, I am satisfied that Mathys was indeed appointed on merit.

That said, I am also satisfied that a racial consideration was indeed brought to bear in the appointment process, as is evident in the motivation presented to the provincial cabinet. That racial motivation was essentially to the effect that the appointment of a Coloured male would have a less negative impact on the numerical targets aiming at equitable representation of the designated groups. The documentation related to the appointment in this instance reveals that at salary level 13 the respondent’s target in respect of Coloured males was 26.9% and in respect of White males was 10.3% of the staff complement. The factual position was that 32% of the posts were occupied by Coloured males and 25% by white males. Thus the conclusion that the appointment of Mathys would not advance the targets is in some sense correct. However, the figures show that in the White male category the target was significantly exceeded, whereas the same was not the case in respect of Coloured males. Accordingly, the conclusion that the appointment of a Coloured male would have a less detrimental effect on targets was also correct. The question then is whether such was a legitimate consideration or whether it amounted to a form of unjustifiable racial discrimination entitling the applicant to the relief he seeks.

In my opinion the panel’s reliance on this secondary consideration was entirely legitimate and did not amount to racial discrimination. Such reliance was entirely consistent with taking affirmative action measures consistent with the purpose of the EEA and thus in accordance with section 6(2)(a) of the EEA which provides that it is not unfair discrimination to do so. Section 6(2)(a) of the EEA, like section 9(2) of the Constitution, overtly acknowledges that substantive equality requires measures to be enacted to make up for inequalities of the past, including the denial of opportunity to persons in designated groups, like Mathys, who have been unable to obtain formal qualifications. Having reached the conclusion that Mathys was more meritorious than the applicant, it was legitimate for the panel to bolster its decision by taking account of the fact that the appointment would achieve a more preferable affirmative action outcome. Even had the applicant scored better than Mathys, it would have been permissible under the then existing policy contained in Exhibit “F” to have advanced the aims of affirmative action by attaching greater weight to Mathys’s potential. This would be so under the respondent’s previous policy even though the targets had been reached in respect of Coloured males and White males. As already said, this may be debatable under the now applicable clause 13.5.

The point also deserves emphasis that targets are indeed targets and not quotas. Under our law of discrimination sight must not be lost of the overall purpose of the EEA which imposes a duty on employers to implement affirmative action measures to redress the disadvantages in employment experienced by designated groups in order to ensure more equitable representation in all occupational categories and levels in the work force. Regardless of whether Mr Mathys’s race was a primary or secondary consideration, his appointment in some measure redresses the disadvantage he no doubt experienced in the employment context as a result of his having been classified as Coloured under the previous dispensation. In short, insofar as any racial consideration operated to affirm Mathys’s appointment, such did not amount to unfair discrimination within the contemplation of section 6 of the EEA.

To sum up I am satisfied that Mathys was indeed appointed on merit and to the extent that any racial consideration played a part it was of a secondary nature and justified within the overall scheme and context of section 6 of the EEA. In the premises, the application must be dismissed. There is no order as to costs.