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

Principle:

To justify discrimination on a prohibited ground such as age, an employer must do so by reference to a genuine occupational requirement that is age-based; merely citing age as a factor is not sufficient.

Facts:

The employee was a full time cricket coach, initially by the SA Cricket Union, but from 1998 onwards by the UCBSA. His duties included running the Plascon Academy for cricket development for about five months of the year, and in addition training and mentoring coaches, lecturing, and taking various cricket teams on tours. The employment was informal and indefinite, but in 2000, feeling vulnerable to change, he sought and was granted a written two-year contract of employment to run from 1 September 2000 to 31 August 2002. In June 2002, as part of a restructuring exercise, the respondent board advertised the applicant's position, recommending that it be 'elevated'. The employee applied to be considered for the post, but was neither interviewed nor appointed. He referred a dispute to the CCMA alleging unfair dismissal and unfair discrimination. The board contended that the fixed-term contract had replaced the original indefinite employment relationship and had expired by effluxion of time.

The arbitrator found that the purpose of the two-year contract was not to replace the indefinite relationship but to give the employee some further security and protection than he enjoyed on an indefinite unwritten contract. The employer was not entitled at the end of that time to treat the relationship as at an end. The employee had a legitimate expectation of remaining in employment on the same or similar terms. The termination of his employment on the basis of the expiry of the fixed-term contract amounted to a dismissal in terms of s 186 of the LRA 1995, and in the absence of any consultation with the employee was substantively and procedurally unfair.

On the issue of discrimination the commissioner found that the facts suggested that the employee at first believed that he had been supplanted by a person of colour but later realized that the board had been motivated by his age and health, and by the preference of the national coach. In considering whether the board was entitled to take age into account, the commissioner had reference to the LAC's reasoning to the effect that discrimination on a prohibited ground may be justified if based on the inherent requirements of the particular job, but found that decision to be distinguishable on the facts.

In the present case the onus was on the employer to justify age discrimination by reference to a genuine occupational requirement that was age based. The employer had not discharged this onus, and its failure to consider the employee's application amounted to unfair discrimination. In the same way, there was no evidence that, although a diabetic, the employee was for that reason incapacitated for his work. The board ought fairly to have considered whether the employee was, but for his medical condition, qualified for the post, and then should have assessed the extent of any accommodation that might be required by that condition. The board was not justified in simply assuming that the employee would not be able to perform. The reliance on coach preference was considered to be an arbitrary and capricious exercise of the employer's discretion, and was also unfair.

The applicant was awarded compensation.

Extract from the judgment:

[28]   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......

[29]   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.

[30]   Was the UCB entitled to take age into account? The UCB relies on Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) 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 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.

[31]   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.

[32]   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.

[33]   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'...........

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[36]   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.

[37]   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..........

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Remedy

[40]   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.

[41]   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:

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



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



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