Ackerman and another and United Cricket Board of SA (2004) 25 ILJ 353 (CCMA)

CHRISTIE C

Issues to be decided

After a pre-arbitration conference on 21 October 2003 the parties' minute on 27 October recorded three main disputes: two in respect of Hylton Ackerman: alleged unfair dismissal (under case no WE10558-02) and discrimination (case no C WE4708-03) and one unfair dismissal dispute in respect of his wife Dawn Ackerman (under case no GA35565-02). The unfair discrimination dispute was to have been adjudicated in the Labour Court but the parties agreed in writing to submit all three disputes to the arbitration jurisdiction of the CCMA in a single hearing.

The alleged dismissal of Hylton Ackerman occurred on 22 August 2002 and this dispute was referred to the CCMA on 7 October 2002 together with an application for condonation in terms of s 191(2) of the Labour Relations Act. It was referred 15 days outside the 30-day period allowed under s 191(1). After a hearing held on 2 December 2002 and an exchange of papers, Commissioner Leon Levy condoned the lateness on 28 February 2003. Two other issues were resolved during the course of the arbitration hearing: (a) respondent admitted first applicant's claim for R9 471 relating to medical aid contributions, and (b) applicant withdrew his claim for R20 898 in respect of contributions to Liberty up to June 2003.

Survey of evidence and argument

The parties agreed that the applicants would begin. Applicants Hylton and Dawn Ackerman testified and the respondent called Mr Mongezi Gerald Majola, its chief executive officer, Mr Anton Ferreira, its manager of coaching (formerly known as director of coaching) and Mr Ian Smith, commercial director, Cricket SA (Pty) Ltd (formerly director finance and administration).

The United Cricket Board of South Africa (formerly the South African Cricket Union) is an incorporated voluntary association. It is responsible for overall management of professional cricket in South Africa. The facts are largely common cause. Hylton Ackerman played cricket for the national Springbok side in the 1970s and both during that period and since he retired from playing in the early 70s he has been involved in cricket administration and coaching. In the mid-1980s Form Scaff Co (Pty) Ltd donated R1m to the SA Cricket Union to develop black cricket in South Africa. For four years Ackerman fulfilled different work all over the country in relation to this project and he earned a monthly salary.

In approximately 1991 Ackerman went to the Western Province Cricket Club as assistant coach. This was a salaried post for the summer months. During the rest of the year he fulfilled various coaching assignments for the SA Cricket Union for which he earned fees.

In about 1994 Ackerman went to the Boland Cricket Union (newly established as a first class cricket union and affiliated to the SA Cricket Union) as its head coach. From time to time during his stint at Boland that union had financial difficulties and the SA Cricket Union paid Ackerman's salary directly to him and Boland apparently reimbursed SA Cricket Union.

Ackerman left Boland in 1997 or 1998 - the date was uncertain but nothing turns on this - and returned to the national organization.

No particulars were furnished of how this occurred but it was not disputed that there was no break from the end of his stint at Boland and his resumption of service at the SA Cricket Union. From 1998 onwards Ackerman was employed full time by the UCB. He earned a monthly salary and a 13th cheque, medical aid and other incidents of an employment relationship. The terms of the employment relationship were informal but it was not disputed that he was at the beck and call of the UCB and would do whatever was required.

From the early 1990s until August 2002, when Ackerman's relationship with the UCB terminated, he coached the Plascon Academy, a national programme for cricket development. This was for four to five months of the year every year. It started as a one-week project, in Bloemfontein only, but over the next decade it was extended to several weeks in different parts of the country and it involved more and more players.

Ackerman's work at the UCB involved his running the Plascon Academy. He completed various other assignments for the UCB: he trained and mentored coaches, did various lecturing and public relations exercises and from time to time he took the SA U-19 team and the SA 'A' team on tours both within South Africa and abroad.

In mid-2000 Ackerman was approached to leave SA Cricket and go to Zimbabwe to coach the national team of that country. He also had received an offer to coach the Dutch team. Ackerman discussed this with Dr Ali Bacher, then managing director of the UCB. Ackerman's undisputed evidence was that Bacher was reluctant to let him go. Ackerman was tempted by the terms of the offer to coach the Zimbabwean team which would have been US dollar denominated. South African cricket was undergoing transformation so that the players and management needed to reflect the demographics of the population. As a white male he felt vulnerable. Although he would prefer to spend the rest of his working life with South African cricket he wanted some assurances that he would not simply be dropped. On 5 October 2000 Ackerman and the UCB represented by Bacher concluded a written agreement of employment to run from 1 September 2000 until 31 August 2002. The terms of that contract reflected Ackerman's existing obligations and the main essential difference in the relationship between the parties before and after the conclusion of the contract was that the employment was for a fixed period. Ackerman claims this fixed period was in addition to his indefinite relationship with the UCB and that when the fixed term expired the indefinite relationship would continue. The UCB contends that the fixed term is the relationship. The contract expired automatically by effluxion of time and there was no underlying contract to revive. The written contract was thus a substitute for their oral informal contractual relationship, not in addition.

Ackerman testified that he thought that when he concluded his contract, other employees were also concluding contracts of employment although he did not know particulars. At about the same time as Ackerman concluded the 2000 agreement Anton Ferreira joined the staff. His contract was indefinite. No reason was tendered for the difference.

Ackerman conceded that the life of a coach could be precarious. He gave instances of coaches who had been dismissed because their relationship with their players had deteriorated. He accepted too that the older one gets the less likely a coach will be kept on and if the team was not successful the coach could be dropped. But he testified that he was not only employed to be the coach of the Plascon Academy. His relationship was more extensive because he taught, did mentoring and various other work. The history of his relationship with the board demonstrates his indefinite employment relationship.

In the 2002 summer cricket season the South African national team had had a poor season both at home and on tour to Australia. At the end of that season certain former national players initiated what came to be called the National Cricket Committee. Its aim was to reflect on and learn from the weaknesses of the past and to integrate some of the expertise from past players into the UCB and to make South Africa more competitive. This NCC also sought to improve reporting and more effective working between the academy, the national coach and the South African Under 19 side and the SA 'A' team.

The NCC met on 19 and 20 June 2002. A note of the meeting dated 24 June 2002 stated, in relation to the position of the SA 'A' coach that 'the contract of the present incumbent Hylton Ackerman expires in August. The NCC recommends that this position be elevated to include full responsibility for the SA 'A' team, National Plascon Academy and SA Under 19 team'. This recommendation including a draft advertisement went to the general council of the UCB - its highest decision making body - and stated that the 'incumbent would be invited to apply for the new position'. This recommendation stated that the position would be 'elevated'. As to whether it was a new job the UCB evidence is ambivalent. Although it purported to be a new post, Majola's evidence was that as Ackerman was on a fixed-term I contract 'his term came to an end' and 'his job was advertised'. 'I did not dismiss him, he was not renewed.'

The terms of the advertised post were as follows:

'COACH FOR SA 'A' TEAM, PLASCON ACADEMY AND SA UNDER 19 TEAM

The United Cricket Board is seeking to appoint an energetic and dynamic senior coach to take responsibility for preparing the SA 'A' and SA Under 19 teams, as well as running the cricketing programme of the national Plascon Academy.

It is the policy of the UCBSA to close the gap between provincial and senior international cricket with a more active, well prepared SA 'A' team. To this end, the UCB will appoint a full-time coach in this position.

Responsibilities include:

Preparation of the SA team and taking responsibility for this team's performance
Preparation and responsibility for the SA Under 19 team
Developing and implementing a programme for the national Plascon Academy
Form a strong relationship with the National Head Coach
Liaison with National Selectors and Under 19 selectors
Developing and implementing a strategy for the consistent readiness of young players for international cricket

Attributes

Respect of players
Leadership skills
Proven track record of achievement in coaching
Playing experience at first-class level - preferably test and/or ODI cricket
Good communication and interpersonal skills
Good person management skills
Flexible and adaptable - essential
Ability to facilitate specialised expertise into the team environment
Embrace UCB visions and policies
Organisational skills
Ability to build a strategy - tactical knowledge
Ability to develop and players skills
Ability to motivate (part of leadership)
The appointment will be effective from 1 September 2003.'

The UCB sent these particulars to all the provincial affiliates of the UCB. In June Ackerman was on assignment in White River in Mpumalanga where the Plascon Academy was playing a series of matches. He only had sight of the advertisement when Ferreira and his colleague Neels Momberg visited White River and Ferreira brought this to Ackerman's attention. Ackerman asked Ferreira to tell head office he wanted to be considered for the post. Ferreira emailed Majola on 4 July and stated that 'While Hylton is not in a position to forward a relevant CV his coaching record and experience is common knowledge and known to all. He is obviously aware of the proposed process to appoint a coach to the elevated position of SA ''A'; the Plascon Cricket Academy and the National U/19 squad, and would welcome the opportunity to be interviewed for this position.'

Ackerman was not interviewed. His application was not acknowledged nor was he told that he was not shortlisted. A selection committee consisting of Messrs Majola, Simons and Ferreira and chaired by Judge Mahomed Jajbhay, interviewed four people: Vincent Barnes, Eldon Baptiste, Mickey Arthur and Dave Nosworthy. The UCB decided not to interview Ackerman because 'we knew him already'. It was put to Majola and Ferreira that Ackerman should have been given a chance to present himself and to defend his record. Mr Majola's view was that they did not need to do so because they knew him and in any event his contract was expiring but Ferreira conceded that it might have been fairer to interview him. Mr Frans Rautenbach argued that the UCB's knowledge may not have been equally shared. Majola's evidence was that Ackerman's application was considered, albeit informally but he later stated that Ackerman had not put in a CV, 'he only had a letter'. The main factors that counted against Ackerman were (a) the need for 'succession planning'; (b) the new duties were extended and 'taking into consideration Hylton's age and health', this job was more demanding than before. Majola stated in his affidavit that 'Despite Ackerman's undoubted knowledge of cricket, there can be no doubt that he does not qualify for the position of South African 'coach in various respects.' No particulars were furnished of the 'various respects'.

Barnes was appointed. Majola considered that (a) he was the best candidate and (b) he was close to Eric Simons the newly appointed national coach (Ferreira confirmed this last point). They were both from the Western Province Cricket Association. It was important that the SA coach work well with the national coach. By succession planning Mr Majola explained that the appointee would be likely to succeed the national coach at some stage. Obviously it was not certain when this would happen. As to how this history made him inherently a better candidate was not explained. Mr Majola admitted that it was an oversight that succession planning was not put in the advertisement.

On about 15 July 2002, after the UCB had decided to appoint Barnes, Mr Majola phoned all the contestants to inform them of the outcome personally. He particularly wanted to have a one-on-one discussion with Ackerman because 'he was in the position at the time; I had to sit him down and tell him where we were going', but Ackerman insisted on knowing there and then. He told him that he hadn't got the job and his relationship with the UCB would therefore come to an end at the end of August. Although Mr Majola's affidavit states that 'I am not in a position to comment on Ackerman's emotions', his oral testimony was that Ackerman was very disappointed.

Majola and Ackerman met at the UCB headquarters in Johannesburg the following day. Three issues emerged from the evidence of what transpired at that meeting:

According to Mr Majola Ackerman admitted he could not carry on with his work. Although the news had come sooner than he'd expected, his 'time had come', or words to that effect. Ackerman strongly denied this and it was not put to him in cross-examination.

There was discussion about whether Ackerman could continue in employment with the UCB in some other capacity. Mr Majola's recollection is that they discussed Ackerman working on an ad hoc basis. Ackerman insists the discussion was about an alternative position as an employee. Nothing much turns on whether this was a discussion of alternative work or alternative employment but Majola did say he would revert to Ackerman on proposals. (It does not appear that he did because he was out of the country after this period and was not able to do so.)

The applicant was very concerned about his loss of medical aid cover because he is an insulin-dependent diabetic and medical cover was, as he put it, 'priority no 1'. He also asked Majola if arrangements could be made for him to acquire the motor vehicle that he had at his disposal. This was not disputed.

After the Majola-Ackerman meeting Ferreira stated that Mr Majola was trying to accommodate Ackerman elsewhere in the UCB but once they got his papers referring the matter to the CCMA on 7 October no further efforts were made.

Analysis of evidence and argument

The two-year contract

UCB seeks to minimize the permanence and continuity of Ackerman's relationship with the organization. Before the 2000 contract, Dr Bacher 'kept him on the payroll of the respondent from year to year. Bacher wanted to keep him for South African cricket'. Majola states in his affidavit that Ackerman's employment as the head of the Plascon Academy since 1994 was part-time and that for the rest of the year he received fees for his other work. This appears to be an erroneous assessment of the relationship. It contradicts Ackerman's testimony that he received a monthly salary and a thirteenth cheque and it was not put to Ackerman in cross-examination. I find that in the period from 1998 onwards G Ackerman was paid a monthly salary and not fees.

Ackerman's version of the circumstances surrounding the 2000 contract was vague but it was not seriously disputed that the only purpose of the contract was to afford him some greater security than he felt he had at that time. Ackerman thought that without a written contract of sorts he could be dismissed without any reason. Ferreira was on an indefinite contract. The UCB did not explain why Ferreira who started in September 2000 was on an indefinite contract whereas Ackerman was on a fixed-term contract. There appears to have been no operational reason for this. In the absence of better evidence to the contrary I find that the parties intended that Ackerman's relationship with the UCB would continue for at least a further two years. This was not an expiry period but a contract which provided that neither party would terminate during the two-year period. A contractual relationship may be partly in writing and partly oral. On the face of it the contract does seem to reflect all the terms of the parties' contract. As the only object of concluding the contract was to give further protection than he enjoyed on an indefinite unwritten contract I consider that the UCB was not entitled at the end of the period to treat the gift as if it was a contract which expired. The evidence of Ferreira was in any event that but for the advertisement Ackerman would have continued in his position.

The 'new' 'elevated' post

There is no convincing evidence that this was a new post. Although there was talk of elevation, it would seem that the only material change was that the person in the post would work more closely with the national coach and the tasks that Ackerman had performed would be more structured and responsibility for the Under 19s and SA would be less adhoc. It was not disputed that the applicant himself had recommended this for some time. The note of the NCC dated 24 June speaks of the 'incumbent' and Majola himself stated that he had not renewed his post. Furthermore the appointment was stated to be effective from 1 September 2003, the day after the expiry of his contract.

The UCB's approach has been that because the contract was expiring it had no obligation towards Ackerman. Ackerman did not realize this. His response to the advertisement was casual, some might even say careless but it reflects his understanding of the informal nature of his long relationship with the UCB. He did not consider it necessary to do more than indicate that he was available to do the job. I do not need to find that Majola was in bad faith in not calling Ackerman to an interview. He believed erroneously in my view that the written contract with Ackerman was coming to an end and he could treat him as an outsider. I disagree.

Mr Gys Rautenbach cited Maritz v Cash Towing CC as authority for the proposition that an employer is not obliged to consult where a fixed-term contract has come to an end. All things being equal I agree that a contract expires and there is nothing to consult over. But in this case the work did not disappear. Ferreira testified that but for the advertisement Ackerman would have continued in his post. Ackerman may have been 'na�ve' about his future. The UCB knew of this naivet� and I do not consider that it should be advantaged by it. The simple fact is that the two-year contract was a gift to Ackerman to keep him at the UCB. There was no reason for the contract other than as a gift superimposed on the informal indefinite contract. But for the advertisement Ackerman would have continued in employment. I consider that he had a legitimate expectation of remaining in employment on the same or I similar terms. The concept of legitimate expectation is to protect an employee who is employed in terms of a contract which purports to be fixed term. I accept that at the end of August he no longer expected to be retained in service. But I reject the cynical argument that an employer can thwart the expectation by simply saying - at the end of the period - I do not intend to renew. Ackerman had had many years' service with the UCB; this was not a stand-alone two-year contract. The UCB knew or ought to have known that Ackerman assumed he would continue to work for the UCB in some form or another. For these reasons I consider that even on the UCB's own version it ought to have consulted with Ackerman on his future. Its failure to do so was unfair.

The UCB took advantage of the formal expiry of the contract to call on the applicant to apply for his own post. There is nothing inherently unfair about this if there is a restructuring but, as Professor Alan Rycroft argues in 'Corporate Restructuring and Applying for Your Own Job' the process of restructuring should not make it easier for employers to retrench employees. I would add that whereas here the job continues and an individual has been in it (or something very similar) for many years there is a greater obligation on the employer to make sure that its process of recruitment, evaluation and appointment is not a device to dismiss for incapacity (or poor performance).

Did the UCB seek alternative employment? Ferreira claimed that Majola was trying to accommodate Ackerman but stopped when he initiated CCMA proceedings. There is no clear evidence of what efforts were made and when. It is noteworthy that the UCB opposed the applicant's application for condonation. I would have thought it should rather have said that the request for conciliation was premature because it was busy trying to find work for him. There is no evidence that it was. In any event the fact that an employee has referred a case to the CCMA should be a spur to settlement possibilities, not the other way round.

I find that the applicant was de facto a permanent employee and he had a legitimate expectation of continuing in employment on the same or similar terms. The termination of his employment on the basis of the expiry of his fixed-term contract amounted to a dismissal in terms of s 186 of the Labour Relations Act and it was substantively and procedurally unfair.

Discrimination on the grounds of age

The UCB admits that 'the factors that played a role in the non-appointment of the applicant were basically (a) his advanced age, and coupled with that his history of health problems; (b) the succession planning taking into account a possible future coach of the national team; and (c) the preferences of the national coach, Eric Simons. The witnesses for the UCB could only say that the successful applicant who was appointed was better than Ackerman. But neither Majola nor Ferreira could point to how he was better; indeed in Majola's affidavit he pertinently stated that he would not set out the basis on which Barnes was better. Where an employer's decision may be 'tainted' by its reliance on a prohibited ground - in this case age - it needs to minimize the significance by showing that the prohibited ground was not significant. The employer refused to do so.

The UCBSA argues that Ackerman's claim of age discrimination is an afterthought. His LR7.11 referral for conciliation stated that the dispute concerned a 'discriminatory practice. UCBSA failed to appoint me to a position on the grounds that I am a white male. Further details will be provided at a later stage'. I know of no authority nor was any cited for the view that the LR7.11 is a pleading or that the referring party is bound by the factual allegations or submissions in an LR7.11. The pre-arbitration minute reflects that the age discrimination claim is properly in contention. The UCB's contention goes to the merits of the claim and it submits that the complaint is not a good faith assertion because at the time of the referral Ackerman 'accepted that age was a valid factor to be taken into account'. The UCB has laid a factual basis for this assumption. There is no evidence when Ackerman realized that his age had been held against him. The undisputed facts suggest that a more likely assumption is that he thought he had been supplanted by a person of colour, but as he got to know more and more about the UCB's reasoning he came to realize that it had been motivated by his age and his health. So it was not an opportunistic afterthought, nor do I consider that Ackerman accepted that the UCB was entitled to consider his age as a relevant factor. Certainly his uncontested evidence was that there are plenty of successful coaches in the world of cricket who are much older than he is.

Was the UCB entitled to take age into account? The UCB relies on Woolworths (Pty) Ltd v Whitehead where the LAC considered whether an employer was entitled to consider the pregnancy of an applicant in a recruitment exercise. If I understand Willis JA's reasoning correctly, it is that discrimination on a prohibited ground is justified if it is based on the 'inherent requirements of the particular job'. He considered that the fact that the applicant would not have been available to tender continuous work meant that the discrimination on the grounds of her pregnancy was not tainted by the 'bigotry or prejudice which the Act was designed to prevent'. I am bound by the majority decision in Whitehead, but it is not relevant to the issues in dispute here. In that case the court considered that where an employer reasonably requires continuous service, its consideration of the fact that a pregnant woman would not be able to tender such service is a consideration of the inherent requirements of the job and is not therefore arbitrary. It would also therefore not be unfair discrimination. In this matter the employer relied on two objective factors: 'advanced I age' and health problems and one subjective factor - the preference of the national coach. But there was no proper consideration of the extent to which age was related in any way to the inherent requirements of the job and I do not consider that merely citing age, without further ado assists the UCB.

As Ackerman has a right to be protected against discrimination on the basis of age the onus is on the employer to justify that discrimination and it must do so by reference to a genuine occupational requirement that is age based. Obviously there are circumstances in which age - young or old - may be a genuine occupational requirement: for example minimum age to drive a vehicle and maximum ages to drive an aeroplane. It would also not be unfair to hire young or old actors where roles require this. But these instances are rare.

The UCB advertisement called for an 'energetic' person. There is no indication that this was limited to physical energy. If this was a reference to age the UCB would need to show that his age is a valid predictor of his energy. Even if there were declining levels of 'energy' there was no evidence of this. The adjective 'energetic' coach is possibly ambiguous as suggested by Mr Frans Rautenbach. It might be an adjective qualifying physical energy; it could also be a reference to mental energy or enthusiasm. It seems on the evidence that even if the employer was in good faith it merely assumed that Ackerman was too old for the job. There is no convincing evidence that he could not do his work. In his evidence in chief Ackerman testified to his competence in relation to each of the skills and attributes. He admitted that organization and paper work were not his strong suits but for the rest he testified that he was well qualified and had a good reputation on all the criteria. Although he was not challenged in cross-examination Ferreira testified that the UCB needed someone to 'run around the park' and Majola claimed that he had had reports from coaches that Ackerman needed assistance because he had been 'battling'. The nature of this 'battling', who these coaches were and the nature and extent of the assistance were not disclosed. Ackerman's claim is that although he may not be as fit as younger men, there was no evidence that he could not and did not perform the requirements of the job as well as was required. It was not disputed that every year Ackerman worked with an assistant coach, normally a person of colour. He would take them under his wing. None of this was challenged. Ackerman's evidence that coaching cricket is as much training in tactics as being able to run about was not challenged.

Ackerman conceded that nowadays coaches are not appointed for life; that contracts are sometimes renewed and sometimes not. In his own case he considered that even if he did not continue in his post at the Plascon Academy - with or without the additional tasks, he testified that he considered that he would continue with the UCB for the rest of his working life. The longer he in fact continued to work for the UCB the greater the entitlement. Although every coach might I hope to rise to the top and coach the national side even if he did not reach those heights he could still play a useful role. When pressed in cross-examination as to his expectations he stated that he did not expect to be 'thrown out of the system' and later, 'I thought they would keep me on and not divorce me totally. I thought I could work until 60 with my brain intact'.

Coach preference

The UCB claims that at senior level it is important that the coaches have a comfortable relationship. The preference of the coach is taken into consideration because the 'trends in modern professional sport' are that 'the coach and the team bear responsibility for success or failure'. There was no evidence of particular changes in this regard. There was also a dispute about whether the reliance on the coach was an afterthought. The advertisement called for the successful applicant to build a relationship with the head coach not to have one already. There was no evidence that the applicant would not have had the capacity to build a relationship with the national coach. Majola testified that Ackerman had not had a good relationship with a particular coach. At first he said that he did not take that into consideration but later that he did. The evidence suggests that the UCB did not assess the applicants fairly against its own stated post requirements. If an employer advertises a post it is obliged in good faith to assess the candidates against its own advertised criteria. Its deference to coach preference to trump all other criteria amounts in my view to a material change in the nature of the contest. Even if I accept the argument that the subjectivity, which the UCB refers to in relation to the coach, is justifiable in relation to the legitimate business purpose, the evidence of reliance on coach preference is vague. It was also not put to Ackerman in cross-examination. The UCB argument is that even if Ackerman were objectively determined to be better than all the other candidates when measured against the advertised requirements, if the coach didn't want him, that's the end of the enquiry. This is an arbitrary and capricious exercise of discretion. I do not consider that an employer is entitled in law and fairness to do this, at least not where this adversely affects the interests of existing employees. In Wolfaardt & another v Industrial Development Corporation of SA Ltd Landman held that where management handpicks individuals on the basis of subjective preference this was akin to 'schoolboys picking a team by calling out names until the less desirable players are left and discarded or accepted reluctantly' consider that the reliance on coach preference in this matter was unfair.

Majola and Ferreira testified that the UCB wanted the new appointee to be part of the succession planning for the national coach. This was not articulated in the advertisement but was apparently discussed in the interview. Ackerman knew he was applying for his own job but he did not know that the post was linked to succession planning for the national coach. Mr Majola conceded that the UCB's failure to mention this in the advertisement was an oversight. I do not consider that it was a requirement that this be put in the advertisement, not least because it might unduly limit the UCB in any subsequent quest for an actual successor to the national coach. However I do consider that it was particularly important to raise this issue with Ackerman and consult him on his approach to succession planning. Ackerman accepted that although his 2000 contract required him 'to be available at all times to coach the national team and other teams or individuals' it was less and less likely that he would do so on anything other than an ad hoc basis. It was put to Mr Majola that the failure to refer to succession planning in the advertisement was deliberate and that the UCB did not want Ackerman to know this. Mr Majola strenuously denied this. I do not consider that there is any basis for me to find that there was a deliberate and therefore dishonest failure to disclose a material fact. Despite Mr Majola's evidence, I believe that the UCB's reliance on succession planning is not consistent with its stated basis for excluding Ackerman, namely coach preference. It seems odd that the evidence of the relationship between Simons and Barnes should be used to justify coach preference and nomination of the successor to the coach. Is the UCB really saying that Simons would in due course nominate his successor? Surely not.

Ackerman is a good coach and this was well known. There is no evidence that in the period between October 2000 when he was 53 and the written contract was concluded and the end of August 2002 that there had been any deterioration in his performance. It would seem from the employer's own version that at best for it, it made generalized assumptions about the applicant's abilities based on his age, read with his medical condition whereas unless age is an inherent occupational requirement suitably qualified applicants from any age ought to have been eligible to apply. I find that the UCB has not discharged its onus of justifying its reliance on age as an inherent requirement of the job and that its failure to consider Ackerman's application amounted to unfair discrimination.

The applicant's medical condition has been referred to a number of times and somewhat obliquely; the employer has relied on it as one of the justifications for not appointing Ackerman. Ackerman does not allege that his condition amounts to a disability in terms of the Employment Equity Act. It does not appear during the relevant period that Ackerman required the UCB to accommodate the disability. Even so I am entitled to consider whether the UCBSA was justified in considering his medical condition. Ackerman is an insulin-dependent diabetic. This condition was diagnosed more than 30 years ago. At the time the employer relied on it, there was no evidence that the diabetes incapacitated him for his work and the undisputed evidence is that physicians have given him a clean bill of health to travel with teams to various foreign countries in recent times. The only evidence that could link his health with his work capacity is the evidence of vague reports that Ackerman had asked others to assist him 'because he was battling'. This is not a sufficient basis in fact. The UCBSA ought to have fairly considered whether the applicant was, but for his medical condition, qualified for the post. Thereafter it should have assessed the extent of any accommodation that might be required by reason of the condition. This was not done. As with his age, the UCB made vague assumptions about 'his health' without any proper information and without consultation with him. He was hired for two years in 2000 as an insulin-dependent diabetic and there was no evidence of any reduction in service by reason of his 'health' in the period from October 2000 to July 2002 when the UCB decided not to consider him. Even if the UCB was in good faith, it is not necessary for me to make a finding on this; it assumed Ackerman would not be able to perform the tasks that would be assigned to him. I do not consider that it was justified in making that assumption.

Procedural aspects of the appointment

There were a number of aspects of the appointment process that were unfair to Ackerman. The failure to grant him an interview created the impression that he was not considered in the same way as the other candidates. The UCB submits that its failure to interview was reasonable, bearing in mind that the other candidates were external without any UCB performance record and were less known to the participants in the selection process. No evidence was furnished of how Ackerman's performance record was compiled; if it was compiled and where he was found to be wanting if at all and how this was presented to the selection committee. The criteria that were advertised do not appear to have been thoroughly scrutinized. Although the UCB claims that it did assess all candidates, it also suggests that the coach's preference was decisive. There is no minute of the selection committee meetings. In the light of the failure to interview him, the employer ought to have demonstrated that it did in fact consider Ackerman and how. In a competition applicants compete against each other and are assessed against the advertised job specifications. There is no evidence of how the UCB weighed the factors and attributes identified in its advertisement. The UCB argues that the preference of the coach is very important and on the other hand that the coach (and team) are accountable for the success of the teams.

The UCB indirectly accepts that its failure to interview Ackerman may not have been fair. Mr Gys Rautenbach states in para 47 of his heads that 'not granting an interview to the applicant at best for him constituted a residual unfair labour practice whilst the applicant was still in the employment albeit by way of a fixed-term contract'. I do not know if this is a reference to a procedural flaw. It also disparages the importance of the interview generally. The UCB knew that if Ackerman was not successful it did not intend renewing his contract. As Ackerman was an existing employee with considerable years of service (whether part-time or full-time) the UCB should have given him an opportunity to engage with the selection committee. The UCB's approach to the purpose of the interview is not clear: We did not need to interview Ackerman because we knew him. The UCB denies that the other interviewees were 'unknown quantities with relatively little experience'. On the contrary. As to why they were interviewed, there is no clear answer. I consider the principle in Wolfaardt's case applies and even if there were good cause to restructure (and there was none here) existing employees should be given the right to present facts in support of their retention.

Remedy

Ackerman argues that he is entitled to a finding and relief for unfair dismissal and for the failure to hire. I think that this amounts to double jeopardy. One employment relationship was terminated even if formally the contract expired and separately he was not hired. Ackerman does not seek reinstatement. Section 50(2) of the Employment Equity Act 1998 provides that the court may make 'any appropriate order that is just and equitable ... including compensation and damages'. Section 48 provides that a CCMA commissioner may in 'arbitration proceedings in terms of this Act, make any appropriate arbitration award that gives effect to a provision of this Act'. The parties' consent to the jurisdiction of the CCMA is no more in my view than an alternative forum. The applicant is entitled to the same relief by way of compensation, damages or otherwise, than if the dispute had been adjudicated in the Labour Court.

In determining what is fair and equitable relief I have considered the likelihood that Ackerman will not find comparable employment. He has sought to mitigate his loss and it is not disputed that he earns approximately R10 000 per month, about a third of what he earned when he was employed and it is probable that he will continue to earn at this level for the foreseeable future. Although there is no cap on compensation or damages for unfair labour practices I consider it appropriate to be guided by the relief for automatically unfair dismissals even though I accept the argument of applicant's counsel that compensation has a punitive element.

Award

I find that:

Ackerman was dismissed in terms of s 186(1)(b) and the dismissal was substantively and procedurally unfair.

The employer was guilty of unfair discrimination in failing to consider his application for appointment by reason of his age.

I order the employer to pay Ackerman R480 000, being approximately two years' salary (discounting likely earnings and a thirteenth cheque), less income tax.

The amount in para 3 must be paid before the end of December 2003.

There is no order as to costs.

Dawn Ackerman v United Cricket Board of South Africa, case no GA35565-02

In 1998 Mrs Ackerman was appointed by Mr Jimmy Cook a former employee of the UCBSA, as caretaker/house mother for the Plascon Academy, for four to five months a year, usually from April to August each year. She was a seasonal employee and her duties were to supervise the domestic servants and laundry staff and to ensure that the young cricketers attending the academy were suitably attired and to provide support and occasional counselling for them.

Before Mrs Ackerman assumed the role of caretaker the wife of another UCB employee had done these chores. She was paid R4 000 per month during the season. She had no written contract of employment or letter of appointment. She was not expressly rehired from year to year: she simply resumed her work at the beginning of each annual season.

When her husband's relationship terminated Mrs Ackerman was anxious what would happen to her and pertinently, whether the UCB considered her relationship as being contingent on her husband still being employed? On 8 October 2002 the day after Mr Ackerman had referred his dispute to the CCMA her attorney wrote to the UCB seeking clarification on this point. The UCB did not reply. A fortnight later on 22 October her attorney wrote again, this time stating that if there were still no reply by the following day she would assume she had been dismissed. There was no reply to this letter either.

On 1 November 2002, Mrs Ackerman referred her dispute to the CCMA. A month later UCB's attorney Mr Alan Foot wrote to Mrs Ackerman's attorney. Mr Foot was decidedly guarded about the nature of Mrs Ackerman's employment. He stated that 'Mrs Ackerman, on an annual basis accompanied her husband, Mr Hylton Ackerman during the programme of the Plascon National Academy'. The letter was silent as to her chores or the regular salary she received. As to whether she had been dismissed the UCB's stance as evidenced in that letter was that the time for performance of the contract had not commenced; that there was no dismissal; that the referral was therefore premature. It was 'considering its position vis-�-vis Mrs Dawn Ackerman and that no decision in regard to her status with the UCBSA had been made'. Oddly Mr Foot wrote that conciliation could not proceed 'as there is, in our client's view no subject-matter in respect of which the parties may concile (sic)'. Presumably this means that there was no dispute.

I find that Mrs Ackerman was entitled to be concerned about her employment: the employer's failure to revert to her was tantamount to a denial of the employment relationship. As such it was anticipatory breach of contract and Mrs Ackerman was not obliged to wait until the beginning of the Plascon Academy in April 2003 to assume that the employer would not take her back into employment. She was therefore entitled to assume as she did that she had been dismissed with effect from 23 October 2003.

Did the employer have good cause to terminate her employment? It was not seriously argued by the UCB that Mrs Ackerman's employment terminated automatically with her husband's. Therefore the employer had a discretion I whether and when to dismiss. Mrs Ackerman's work was coincidental with her husband's employment but it does not follow that it was a prerequisite that the housemother be married to the coach of the academy. There was no convincing evidence on this point, one way or the other. Had this been so, the UCB would surely have told her during the 2002 season that she would not be returning the following year. They did not do so. I find that it was an essential term of the contract that her contract was dependent on her husband continuing in employment.

The only justifiable grounds for termination would be for valid and sufficient reasons having to do with the employee's conduct or capacity or the employer's operational requirements. There was no clear and convincing evidence that it would not be in the employer's best operational interests for her to continue in employment. Even if I were to assume in the employer's favour, at the UCB would have had sufficient valid reason to terminate for operational requirements, the dismissal was procedurally unfair because the UCB did not consult her and explain its concerns. At the very least it should have consulted with her, disclosed its operational problem, explored the extent to which it would be uncomfortable or worse, impossible. What it was not allowed to do was to ignore her, to trivialize her employment and refuse to deal with her concerns.

On the employer's own version I find that its handling of Mrs Ackerman's employment was unfair to her and it breached her rights to fair treatment. It has not disclosed fair and sufficient reason to terminate nor did it afford her any due process. As such the dismissal was substantively and procedurally unfair and I consider Mrs Ackerman is entitled to compensation.

Mr Gys Rautenbach for UCB argued that compensation in s 194(1) of the LRA should be understood as meaning compensation for loss and that 'in the absence of such information being tendered [that she has suffered any losses] it is submitted that normal should be awarded, if indeed any'. I presume the word 'normal' should read nominal. He furnished no authority for that proposition. I have a discretion as to the amount of compensation I may order.

I do not consider that Mrs Ackerman should only be awarded nominal compensation. The UCB's conduct towards her was harsh and unfair. I accept that the UCB was in an awkward position and may have found it difficult to deal with her claim without (perhaps) making some admissions regarding her husband's dispute. But such difficulties were of its own making; Mrs Ackerman has an individual right to be treated fairly but the UCB treated her as an appendage of her husband and as such treated her unfairly because of her relationship with her husband. When she pertinently asked for reassurance as to her status at first it denied there was an employment relationship at all and then it stated - months later - that it was considering its position. There was no evidence that it did so or if it did there is no evidence that it communicated its position to Mrs Ackerman at any stage before or after she referred her dispute to the CCMA.

There is no factual basis for me to find that Mrs Ackerman did not give good service. Mr Gys Rautenbach considered on the authority of Chothia v Hall Longmore & Co (Pty) Ltd [1997] 6 BLLR 639 (LC) that an applicant has an onus of proving her loss. This is not so. Compensation for procedural unfairness is always a kind of solatium and the employee in such situations does not need to prove patrimonial loss to qualify for compensation for procedural unfairness. I accept that applicants ought generally to mitigate their loss and failure to do so may be grounds to reduce compensation. In this case I consider that the UCB treated Mrs Ackerman in a particularly cavalier fashion; her monthly salary was modest; she rendered good service for four years and I consider that four months' remuneration would be fair compensation in the circumstances.

I find that:

The UCB dismissed Mrs Ackerman on 23 October 2002;
This dismissal was procedurally and substantively unfair.
I order the UCB to pay Mrs Ackerman R16 000 (being four months' remuneration at the time of her dismissal), which sum shall be paid before the end of 31 December 2003.
There is no order as to costs.

Error in the original. Presumably 'and' should be omitted or some verb such as 'build' inserted. Nothing turns on this.
Because he was on tour.
para 26.
para 31.
Majola affidavit para 20.
Respondent's heads of argument para 38.
(2002) 23 ILJ 678.
See SA Mutual Life Assurance Society v Insurance & Banking Staff Association & others [2001] 9 BLLR 1045 (LAC).
Respondent's heads para 40.
[2002] 11 BLLR 1127 (LC).
at para 31.
clause 5.1.2.
at para 30.
subparas (a) and (b).