In the matter between

NAPTOSA obo J MYLES Applicant

and

HOD, DEPARTMENT OF EDUCATION, GP First Respondent

QUEEN MASHIGO Second Respondent
¬¬¬¬___________________________________________________________

ARBITRATOR: Adv D P Van Tonder
HEARD: 13 June 2013
ARGUMENTS: 27 June 2013
DELIVERED: 3 July 2013

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Alleged Unfair Labour Practice relating to Promotion
Unfair conduct – Failure to appoint best candidate relied upon as unfair conduct – Defence of Affirmative action raised as defence by employer
Affirmative action measures – Such measures a complete defence to a claim of unfair conduct in not appointing the best candidate provided that they meet the requirements of fairness, rationality and proportionality and are consistent with the purpose of the Employment Equity Act and Constitution
Gauteng Department of Education not having any formal employment equity plan, nor any informal consistent employment equity policy for GDE – This making it impossible for GDE to apply affirmative action rationally, proportionally and fairly

I INTRODUCTION

[1] This dispute concerns an alleged unfair labour practice relating to promotion. The arbitration hearing in this matter took place in Johannesburg on 13 June 2013. The proceedings were digitally recorded. The written closing argument were received by 27 June 2013.

II THE PARTIES

Applicant
[2] The applicant is the National Professional Teachers’ Organization of South Africa (NAPTOSA), a trade union registered in terms of the Labour Relations Act, who has referred this dispute on behalf of its member Mr Myles. Applicant was represented by Mr. Swartz from NAPTOSA.

First Respondent
[3] First respondent is the Provincial Head of the Gauteng Province Department of Education, who in terms of legislation is the employer of educators employed in the Gauteng Department of Education. First respondent was represented by an employee Mr. Phephenyani.

Second Respondent
[4] Second Respondent is Queen Mashigo, a female educator. She was represented by Mr. Makwela from SADTU.

III THE ISSUES TO BE DETERMINED

[5] I have to determine whether an unfair labour practice relating to promotion was committed, and if so, the appropriate relief.

IV BACKGROUND TO THE DISPUTE

[6] This is a promotion dispute involving post number JC22CS1006B at E. W. Hobbs Primary School in Johannesburg, being the post of deputy principal at post level 3, advertised by first respondent in the vacancy list of April 2012. Applicant and second respondent, together with other candidates, applied for appointment to this position. Appointment to the post would have been promotion for both applicant and second respondent as they were post on post level 2. Applicant and second respondent were shortlisted and interviewed. Applicant was nominated by the school governing body (SGB) as their first choice, whereas second respondent was nominated by the SGB as their second choice. A third candidate was nominated as the third choice.

[7] First respondent delegated its powers to appoint educators to its district directors. After having received the recommendation from the school governing body, the district director for Johannesburg Central in whose jurisdiction E. W Hobbs school falls, appointed second respondent and not applicant. Applicant is a Coloured male whereas second respondent is an African female. The third nominee of the SGB is an Indian female.

V THE APPLICANT’S CLAIM

[8] After second respondent received a letter from the District Director informing her that she was appointed to the post, a certain Ms Maritz signed an appointment letter on behalf of the district director, addressed to applicant, also appointing applicant to the same post. The letter was later withdrawn. Applicant claims that the withdrawal of the appointment letter was unfair. In respect of first respondent’s defence that it has appointed second respondent and not applicant because of affirmative action, applicant claims that first respondent has applied affirmative action unfairly, capriciously and irrationally.

VI FIRST RESPONDENT’S DEFENCE

[9] First respondent claims that the letter of appointment that was issued to applicant was issued as a result of a mistake by an official who had no authority to make appointments.

[10] First respondent claims that second respondent was appointed and not applicant because of affirmative action. First respondent claims that the employer was entitled to apply affirmative action because Coloured educators are overrepresented at management level at E. W Hobbs school and African educators underrepresented. All the members of the school management team were Coloured. The employer also claims that by virtue of the fact that the majority or learners at the school are African, it was permissible to give preference to the appointment of an African educator at managerial level at the school.

VII IMPORTANT FORMAL ADMISSIONS

[11] The following important formal admissions which were admitted as common cause facts, were placed on record by the parties:

11.1 First respondent’s last affirmative action plan was issued in 2005 and was no longer relevant when this post was advertised;

11.2 By virtue of merit (based on qualifications, experience and points scored during interviews) applicant was in fact the best of all the candidates who applied for the post (including second respondent);

11.3 The gap between applicant and second respondent in respect of merit (by virtue of qualifications, experience and points scored during interviews) was not so wide that it can be described as significant.

VIII SUMMARY OF EVIDENCE
Evidence on behalf of applicant

[12] Cecil Scorgie, testified that he has been employed by NAPTOSA for 10 years. He represents NAPTOSA in all matters of collective bargaining. The Gauteng Education Department only ever had one affirmative action plan namely the one that was published in in 2005. That plan was meant to be applicable for 5 years. However it only contained targets for 2005. The intention was that the parties should meet and targets should be set for future years after 2005. That never materialised.

[13] The employer did attempt to consult on further affirmative action plans and targets over the last 3 years, but unfortunately not all the stakeholders cooperated and that plan never materialised. Apart from the 2005 affirmative action plan, which is no longer applicable and was no longer applicable when this post was advertised, the Gauteng Education department has no other affirmative action plans or policies of which he is aware. There are no current provincial equity targets or provincial equity workplace profiles. The only equity profiles that are available are the equity profiles of individual schools. Each school has its own equity profile that only contains the equity profile of that school and not of any other schools. That profile is based on the annual post establishment. When unions enquired about the purpose of the school profiles, they were told it was merely for data collection purposes. He cannot understand how affirmative action can be implemented at school level. It should be implemented at provincial level.

Evidence on behalf of first respondent
[14] Beverley Loraine Tshepo-Seate, testified that she is employed by first respondent as district director for Johannesburg Central District. All district directors have delegated authority from the Provincial HOD to make appointments. After she received the recommendation from the SGB for the appointment of deputy principal at E. W Hobbs Primary School, recommending applicant as the first nominee and second respondent as the second nominee, she decided to appoint second respondent and not applicant.

[15] She wrote a letter to second respondent on 12 July 2012 appointing her to the post. In making the appointment she did not slavishly follow the recommendation of the school governing body because she knows from experience that governing bodies often give more points to the candidate they favour during interviews. Before deciding who to appoint, she considered:

15.1 the merit, experience and qualifications of the candidates (by perusing cv’s of the candidates and results of candidates obtained during the interviews);

15.2 the gender and racial profile of educators in various levels at the particular school (by perusing the workplace profile of educators at the school (reflecting gender, position and race);

15.3 the gender and racial profile of learners at the school by perusing the learner enrolment at the school (reflecting gender and race);

[16] When she compared the applicant and second respondent with regard to merit, qualifications and experience, she came to the conclusion that the difference between them was not significant.

[17] The equity workplace profile of the school reflected that there were 32 educators at the school, consisting of 1 post level 1 African male, 14 post level 1 African females, 11 post level 1 Coloured females, 1 post level 2 Coloured male(HOD), 3 post level 2 Coloured females(HOD), 1 post level 3 Coloured male (deputy principal), 1 post level 4 Coloured male (school principal), and no Indian or White educators. This told her that there is a need to appoint an African female in the management team of the school as there were no African educators on the management team.

[18] The learner enrolment profile at the school informed her that the school had 1251 learners of which 706 were African, 539 were Coloured and 6 were Indian. The fact that 56 percent of the learners at the school were African was an important factor she took into account. She was of the view that where the majority of learners at the school were African, there had to be African educators on the school management team.

[19] When asked on what basis she is entitled take the race of learners into account when making appointments, she replied that she is entitled to do so because the law not only states that equity must be taken into account when making appointments, but that representivity must also be taken into account. Equity and representivity cannot mean the same thing. Therefore in addition to the racial and gender profile of educators at the school, she is also entitled to take into account the racial profile of learners at the school.

[20] She further believes that she is entitled to take the racial profile of learners at the school into account when making appointments, because it would be easier to communicate to African learners who are the majority at the school if there are African educators who speak their language on the management team. When asked what the medium of instruction at the school is, she conceded that there is only one medium of instruction namely English.

[21] She is not aware of any affirmative action plan, policy, guidelines or circulars issued by the Gauteng Education department or first respondent. In fact there is no guidance at all from her employer as to how she must implement affirmative action. She is also not aware of the existence of any provincial workplace profile for educators or provincial equity targets of educators in the Gauteng Education Department. She is also not aware of the existence of any provincial or national profile of economically active population in the Gauteng Education Department that can be used to set goals for affirmative action appointments. However she is aware that the law tells her to implement affirmative action and that is why she is applying it.

[22] During cross-examination she was shown exhibit B34, which is a letter from her colleague, the District Director of Tshwane North. That letter is dated 16 May 2013 and states that the District Director cannot consider representivity or equity at all when making appointments because the Gauteng Education department currently has no provincial equity grid. She conceded that her approach and that of her colleague appears to be different.

[23] After she had already appointed second respondent, Mrs Maritz who was employed as deputy Director HR came to her during November 2012 and said she had made a big mistake. Maritz then showed her a letter dated 13 September 2012 in which Maritz had written to applicant informing him that she (Maritza) has appointed him to the post. Maritz was not a district director and had no delegated authority from the HOD to make appointments. She (the witness) also never delegated any authority to Maritz to make appointments. She then wrote a letter to applicant on 18 November 2012 informing him that the letter of appointment was issued to him by mistake and that the letter is withdrawn.

IX ARGUMENTS
[24] Written heads of argument were submitted by the representatives for applicant and first respondent. Second respondent elected not to file any arguments. I do not intended to summarise these arguments here in detail, but will deal with them in more detail, if and where necessary during my discussion. In short Mr Swartz submitted that it was unfair of the employer to have withdrawn the letter of appointment after it was issued to applicant. Mr Swartz further submitted that affirmative action was not applied fairly by the employer. Mr Phephenyani submitted that affirmative action was applied in a fair manner. He also submitted that because Ms. Maritz never had authority to appoint applicant, the director was entitled to withdraw the letter of appointment and that this was not unfair.

X DISCUSSION AND FINDINGS

THE ELEMENTS OF AN UNFAIR PROMOTION DISPUTE
[25] The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:

“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”

[26] An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.

[27] The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. In deciding whether conduct relating to a promotion was unfair, an arbitrator is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. Therefore in order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or unfairly discriminated. Furthermore he needs to prove that had it not been for the unfair conduct, he would have been promoted. This he can only do by proving that he was the best of all the candidates who applied for the post.

THE LETTER OF APPOINTMENT THAT WAS WITHDRAWN
[28] It is common cause that after a letter was signed on 12 July 2012 by the District Director who has delegated authority from the Provincial HOD to make appointments, appointing second respondent to the post of deputy principal at E.W Hobbs Primary School, Ms. Maritz signed a letter of appointment on 13 September 2012, appointing applicant to the same post. On behalf of applicant it is submitted that the withdrawal of this letter on 19 November 2012 was unfair.

[29] The Employment of Educators Act provides that it is the provincial Head of Department of Education (HOD) who is the employer of educators and who appoints educators. The Employment of Educators Act further permits the provincial HOD to delegate to any person in the service of the provincial department of education any power conferred upon the Head of Department by the Employment of Educators Act. This means that the provincial HOD is by law entitled to delegate his power to appoint educators to any employee in the service of provincial education department. It is common cause that the provincial HOD Gauteng has delegated his authority to appoint educators to district directors. By virtue of section 36 of the Employment of Educators Act, that is a lawful delegation, making it possible for all District Directors in the Gauteng . Education Department to lawfully appoint educators.

[30] In our law, where powers are conferred upon a subordinate authority, the maxim delegatus delegare non potest prevents a further delegation of such powers unless delegation is authorised either expressly or by necessary implication by legislation. Whatever the position in the private sector may be, the position is that a delegation of power by a public official is generally bad in law unless he has the right to delegate. Where there is no express authority to delegate the maxim delegatus delegare non potest has prima facie weight and there is an onus to prove on whoever alleges, that the delegator has the authority to further delegate that authority by necessary implication in terms of the empowering legislation.

[31] Before Ms Tshepo-Seate testified, Mr. Swartz suggested that Ms Tshepo-Seate had delegated her delegated authority to Ms Maritz to appoint educators. Even if this were so, then in accordance with the delegatus delegare non potest principle, such delegation would have been invalid. During her evidence Ms Tshepo-Seate made it clear that she never delegated any authority to Ms Maritz. There is no basis for me to reject this version and there is no version from NAPTOSA before me to suggest that the evidence of Ms Seatez is not the truth. I accordingly find that Ms Maritz never had delegated authority to appoint educators. During closing arguments Mr Swartz however persisted with the argument that the letter of appointment issued to applicant was a valid one and that it was unfair to withdraw the letter.

[32] The doctrine of ultra vires was adopted by the old Cape Supreme Court in 1844 almost as soon as Supreme Court was established in the Cape. The Constitutional Court has held that the doctrine of ultra vires still forms part of our law. One of the consequences of the ultra vires rule is that when a public official acts beyond her jurisdiction by doing things that she is not legally empowered to perform by legislation, her conduct is invalid.

[33] In the case of Zongo v MEC for Education Eastern Cape, an educator Mr Zongo received a letter of appointment, appointing him as school principal. The letter was signed by Mr Mkentane who was a Chief Education Specialist. Later the letter of appointment was withdrawn. As a consequence Mr Zongo instituted an action for breach of contract in the High Court. The Court accepted the employer’s evidence that the provincial HOD in the Eastern Cape had delegated his power to appoint educators to district Directors. The district Director Dr Nuku testified that he was on sick leave when the letter of appointment was signed by Mr Mkentane. Although he was supposed to authorize somebody in writing to act as Director while he was off sick, he never did so as he was simply too sick. At not stage did he or anybody else delegate authority to Mr Mkentane to make appointments.

[34] Based on these facts, the Court in Zongo v MEC for Education Eastern Cape held as follows:
“It is also trite that a contract that is ultra vires the enabling legislation is void ab initio and is not enforceable. It is trite law that the legislative and executive in every sphere may exercise no power and perform no function beyond that conferred upon them by law. Section 6(1) of the Employment of Educators Act 76 of 1998 reads as follows:- “Subject to the provisions of this section, the appointment of any persons or the promotion or transfer of any educator in the service of a Provincial Department of Education shall be made by the Head of Department.” In this case it is evident that this authority was delegated personally to Dr Nuku, in writing. There was no delegation made by the Head of Department to Mr Mkentane in writing as required by the Act or even verbally. Mr Mkentane accordingly had no authority or delegated powers to appoint and any act taken by him was ultra vires the Act and of no force and effect.

In this case it is evident that this authority was delegated personally to Dr Nuku, in writing. There was no delegation made by the Head of Department to Mr Mkentane in writing as required by the Act or even verbally.Mr Mkentane accordingly had no authority or delegated powers to appoint and any act taken by him was ultra vires the Act and of no force and effect.

The real issue in this case is whether or not the Defendants’ witness, Mr Mkentane, acted ultra vires when he signed the letter. The Plaintiff was justifiably unable to gainsay the evidence of both Dr Nuku and Mr Mkentane, that Mr Mkentane did not have the power or the authority to appoint as this power was delegated to Dr Nuku personally as the District Manager and there is no evidence that he could or did delegate this power. The Act does not make provision for Dr Nuku to delegate this power. The testimony of both these witnesses clearly indicates that Mr Mkentane did not have the power to appoint. I accept that it was not a power that could be expressly or implicitly delegated by Dr Nuku and most certainly not verbally, since Dr Nuku did not have the power or the authority to delegate. Accordingly the letter of appointment signed by Mr Mkentane was void ab initio and no valid and binding agreement came into existence. The letter of appointment in the circumstances can be regarded as pro non scripto. The Plaintiff accordingly cannot rely upon the letter as creating a valid and binding agreement between the parties in the circumstances.”

[35] The facts in this case are very similar to the facts in the Zongo case. Applicant has presented no evidence that Ms. Maritz had lawful power in terms of the Employment of Educator act to appoint educators during September 2012.

[36] On the other hand Ms. Tshepo-Seate’s version Ms Maritz never had delegated authority from the provincial HOD or herself seems probable. There is no basis for me to reject that version. Accordingly I find as a fact that Ms Maritz did not during September 2012 when she made the appointment, have any delegated authority from the HOD or even from Ms Tshepo-Seate to make appointments. This means that when Ms Maritz signed the letter of appointment she acted ultra vires and exceeded her jurisdiction. The letter of appointment signed by Ms Maritz was accordingly void ab initio . The letter of appointment can be regarded as pro non scripto . No valid appointment was made and no valid and binding employment agreement came into existence. Applicant does not have any basis to ask for an appointment based on this invalid letter of appointment.

[37] Hence in law, the letter of November 2012 informing applicant that his appointment letter has been withdrawn, had no legal status or consequences. Even before the letter of November, applicant’s appointment in September 2012 was a nullity. It is not because of the letter of November 2012 that applicant was not appointed in the post based on the letter of September 2012; it is because the letter of September was null and void from the moment that it was signed. In the circumstances respondent did nothing unfair when applicant was informed during November 2012 that the letter of appointment of September was withdrawn. The mistake was brought to applicant’s attention as soon as it was discovered.

THE AFFIRMATIVE ACTION DEFENCE
[38] It is common cause that applicant was the best of all the candidates (including second respondent) who applied for the post. Although there is no doctrine of legitimate expectation in promotions, the Labour Court has made it clear that what is always expected is that the best candidate be appointed. This statement must be qualified by adding that affirmative action measures, applied correctly, rationally, proportionally and fairly, will have the effect that appointment of a weaker candidate from a designated group may nevertheless be considered fair.

Statutory basis for Affirmative action
[39] The origin of affirmative action measures permitting fair discrimination based on gender, race and disability in South African law in public education can be traced back to the Constitution, the Employment Equity Act and the Employment of Educators Act:

THE CONSTITUTION
9 Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

THE CONSTITUTION
195 Basic Values and Principles governing public Administration

(1) Public Administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:-
(i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation.

THE EMPLOYMENT EQUITY ACT

6 Prohibition of unfair discrimination
(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

(2) It is not unfair discrimination to-
(a) take affirmative action measures consistent with the purpose of this Act;

THE EMPLOYMENT OF EDUCATORS ACT
6 Powers of Employers

(3)(b) In considering the application [for appointment of an educator], the governing body must ensure that the principles of equity, redress and representivity are complied with and the governing body must adhere to the democratic values and principles referred to in section 7(1)

7 Appointment and filing of posts
(1) In the making of any appointment of the filing of any post on any educator establishment under this Act, due regard shall be had to equality, equity, and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the RSA, and which include the following factors, namely (a) the ability of the candidate and (b) the need to redress the imbalances of the past in order to achieve broad representation.

The purpose of affirmative action measures
[40] Affirmative action consists of measures which are restitutionary and remedial in nature. Its purpose is to normalize the labour market in the sense that the under representation of certain segments of the population, caused through discriminatory practices in the past, should be rectified. Its purpose is not to reward or compensate people for belonging to a certain segment of the population, which was discriminated against in the past. In Action Travail des Femmes v Canadian National Railway, it was stated that the concept of affirmative action was designed:

“ to break a continuing cycle of systemic discrimination. The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forbears.’

[41] Section 2 of the Employment Equity Act emphasizes the need to ensure the equitable representation of people who were discriminated against in the past in all occupational levels and categories in the workforce:

”2 Purpose of this Act
The purpose of this Act is to achieve equity in the workplace by-
(a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.”

[42] The beneficiaries of affirmative action are those who belong to designated groups. “Designated groups” are defined as black people, women and people with disabilities. “Black people” is defined as a generic term which means Africans, Coloureds and Indians. Affirmative action measures are defined as follows in section 15 of the Employment Equity Act:

15 Affirmative action measures
(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.

(2) Affirmative action measures implemented by a designated employer must include-
(a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups;
(b) measures designed to further diversity in the workplace based on equal dignity and respect of all people;
(c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated
employer;
(d) subject to subsection (3), measures to-
(i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and
(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.
(3) The measures referred to in subsection (2) (d) include preferential treatment and numerical goals, but exclude quotas.
(4) Subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.

The need for affirmative action measures
[43] The history of the legislative scheme in our country before 1994 and the grave injustices perpetrated left deep scars which are still visible in our society in many facets of our lives, including the labour market:

“Until recently, very many areas of public and private life were invaded by systematic legal separateness coupled with legally enforced advantage and disadvantage. The impact of structured and vast inequality
is still with us despite the arrival of the new constitutional order.”

[44] It was against this background that the Employment Equity Act was enacted. The explanatory Memorandum to the Employment Equity Act explains the need for the Employment Equity Act as follows:

“Apartheid has left behind a legacy of inequality. In the labour market the disparity in the distribution of jobs, occupations and incomes reveals the effects of discrimination against black people, women and people with disabilities. These disparities are reinforced by social practices which perpetuate discrimination in employment against these disadvantaged groups, as well as by factors outside the labour market, such as the lack of education, housing, medical care and transport. These disparities cannot be remedied simply by eliminating discrimination. Policies, programmes and positive action designed to redress the imbalances of the past are therefore needed.”

[45] The rationale for introducing affirmative action measures and the goals which such measures were meant to achieve in post-apartheid South Africa, is perhaps best summarized by former President Nelson Mandela, who was quoted as follows in the explanatory Memorandum to the Employment Equity Act:

“This legislation is drafted with a view to advancing those groups who have been disadvantaged as a result of discrimination caused by laws and social practices, and not with a view to seeking retribution for past injustices. As president Mandela has said, ‘The primary aims of affirmative action must be to redress the imbalances created by apartheid. We are not . . . asking for hand-outs for anyone nor are we saying that just as a white skin was a passport to privilege in the past, so a black skin should be the basis of privilege in the future. Nor . . . is it our aim to do away with qualifications. What we are against is not the upholding of standards as such but the sustaining of barriers to the attainment of standards; the special measures that we envisage to overcome the legacy of past discrimination are not intended to ensure the advancement of unqualified persons, but to see to it that those who have been denied access to qualifications in the past can become qualified now, and those who have been qualified all along but overlooked because of past discrimination, are at last given their due. The first point to be made is that affirmative action must be rooted in principles of justice and equality.’ “

The obligation to implement employment equity
[46] Implementing affirmative action measures is not a choice. It is mandatory. Designated employers must in order to achieve employment equity, implement affirmative action measures for people from designated groups.

Judicial scrutiny of affirmative action measures
[47] Affirmative action measures which comply with section 9(2) of the Constitution and section 6(2)(a) of the Employment Equity Act, are not presumptively unfair and constitute a complete defence to a claim of unfair conduct or discrimination. Affirmative action measures are not immune to judicial scrutiny, because only affirmative action measures which are consistent with the purpose of the Employment Equity Act and the Constitution can constitute a defence to a claim of unfair discrimination. In order for affirmative action measures not to constitute unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA, such conduct must therefore not only be tested against the requirement of fairness as intended in section 186(2)(a) of the LRA but also whether the measures are Constitutional and consistent with the purpose of the Employment Equity Act. This means that affirmative action measures as well as the manner in which they are applied must comply with the requirements of fairness, rationality and proportionality, in order to escape the definition of an unfair labour practice.

The requirement of Fairness
[48] What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. Fairness depends on the cumulative effect of all relevant concerns, including the extent of the impact of the measure on the rights and interests of the complainant. Conduct which is unreasonable, irrational, capricious, or arbitrary, will be unfair. An affirmative action plan or program as well and its application and implementation should be fair and may not be arbitrary, haphazard, random and overhasty.

The requirement of Rationality
[49] To act rational means to act in a manner “based on reason or logic”. The requirement of rationality entails that conduct or decisions must be rationally connected to: (a) the purpose for which it was taken; (b) the purpose of the empowering provision; (c) the information before the decision maker and (d) the reasons given for it by the decision maker.
[50] To escape being branded as unfair conduct, affirmative action measures need to be consistent in nature. More importantly there must be a rational connection between affirmative action measures and the aim they set out to achieve.

[51] Examples of how our Courts have approached the requirement of rationality in relation to affirmative action measures include the following: When applying affirmative actions measures in making promotions or appointments, it will constitute unfair discrimination to regard race as the only criterion. Candidates must also be considered based on criteria such as qualifications, experience, prior learning, competence, suitability and the potential to develop and the potential to acquire within a reasonable time the ability to do the job. Where an employer does have an affirmative action policy, such policy must comply with legislation and must be applied correctly.

The requirement of Proportionality
[52] Proportionality requires the balancing of competing interests. The concept of proportionality means that measures or conduct must (a) be suitable or effective to achieve the desired aim; and (b) be necessary in the sense that no lesser form of interference with the rights of the complainant was possible in order to achieve the desired aim; and (c) not place an excessive burden on the complainant which is disproportionate in relation to the public interest at stake. Affirmative action measures must be causally related and proportional to their objectives making as limited inroads as possible on the rights of other employees or work seekers. The granting of extravagant benefits that disproportionaly enhance the positions of members of formerly disadvantaged groups at the expense of other would go beyond goals of the EEA. On the other hand affirmative action measures are not required to be strictly necessary to achieve a compelling policy objective. It is enough that they be a rational means of advancing the legitimate aims of affirmative action. Yet there must be some degree of proportionality, based on the particular context and circumstances of each case.

The need for representivity amongst designated groups
[53] Coloured men and African women are both designated groups who are entitled to the benefits of affirmative action. I now turn to discuss whether an employer may fairly discriminate against a member of one designated group in favour of a member of another designated group in the name of affirmative action in order to promote representivity. The reality is that even amongst the designated groups, there is a need to promote representivity. Our Courts and arbitrators have in fact recognized that the achievement of a broadly representative workforce at all levels will not be possible if employers are not permitted to differentiate between candidates who fall within designated groups and that it is indeed permissible and fair to discriminate between members of designated groups in order to promote representivity in the workplace. Professor Du Toit argues that instead of using the concept of ‘degrees of disadvantage’ as a test in determining whether and to what extent members of certain designated groups should be preferred over members of other designated groups, the test of representivity (namely the equal representation of all designated groups) in all occupational categories and levels in the workforce should rather be used. Dupper & Garbers also support this test and explain this test as follows:

“Equitable representation of persons from designated groups is integral to the concept of affirmative action (see section 15(1) of the EEA), and the degree to which persons of particular racial or gender groups are underrepresented in a particular occupational category or level within a workplace should determine the appropriateness of affirmative action in respect of applicants from particular groups. For example, if the facts show that African women are most severely underrepresented in a job category of an employer operating in the Western Cape, the employer will be justified in giving preference to female African applicants who are suitably qualified. Similarly if Coloured men are underrepresented in certain job categories of an employer in the Northern Province, suitably qualified candidates from this group may receive preferential treatment over African men who may already be sufficiently represented in that job category. This approach is more closely compatible with the purpose of the EEA and more sensitive to regional and industry peculiarities”.

[54] If the employer adopts this approach when implementing affirmative action, instead of arbitrarily ranking educators in order of preference based on race and gender, then there is in principal nothing unfair about the fact that the slightly stronger candidate also happened to be from a designated group. The fact that applicant too was a member of a designated group therefore takes the matter no further.

Was second respondent suitably qualified?
[55] The concept of affirmative action means that a suitably qualified candidate from a particular designated group is preferred over other candidates, despite the fact that other candidates have superior and better qualifications and experience. Appointment of an unqualified or incompetent person is never permitted in the name of affirmative action.

[56] Grogan states that when applying affirmative action measures in making appointments, a considerable gap between the skills, experience and qualifications of a person who is preferred and appointed in the name of affirmative action, over another with superior qualifications and experience, is indeed permitted, and that such an appointment will not be seen as irrational, merely because of the considerable gap between the two candidates. Where however the gap between two candidates is too wide or significant, appointment of the weaker candidate in the name of affirmative action will be irrational. This is true especially in the education sector because in appointing educators, the best interests of the learners are of paramount importance.

[57] It is common cause that second respondent was suitably qualified for the job and that merit wise the gap between her and applicant was not too significant or wide. From this point of view too, there is no unfairness.

An employment equity plan
[58] It is common cause that first respondent’s last employment equity plan was drafted in 2005, has lapsed and is no more relevant. First respondent is a designated employer as defined in the Employment Equity Act. A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce. The duration of the plan may not be shorter than one year or longer than five years. Before the end of the term of its current employment equity plan, a subsequent employment equity plan must be prepared. First respondent is accordingly guilty of contravening section 20 and 23 of the Employment Equity Act. Once it comes to the attention of any labour inspector that a designated employer does not have a current employment equity plan, that inspector must request an undertaking from that employer to prepare a plan. If the employer fails to comply, the inspector may issue a compliance order against the employer, which order may be made an order of the Labour Court. The Labour Court may impose on a first offender a fine of R500 000 for failure to prepare and have a current employment equity plan.

[59] I am accordingly dumbstruck to hear that first respondent, who is after all part of government and who should therefore set an example to the public in complying with national legislation, has managed to escape the law for so many years whilst being in flagrant breach of legislation. The only reason that I can think of why this has happened, is because labour inspectors are not aware of first respondent’s breach as employers need not submit their employment equity plan to the Department of Labour, unless the Department of Labour requests a copy. What I can also not understand is why none of the education unions who operate in Gauteng, has lodged a complaint in this regard with the Department of Labour. In terms of the EEA any trade union may bring a contravention of the Employment Equity Act to the attention of a labour inspector, who must investigate and must issue an undertaking against the employer to comply.

[60] If I understand the evidence of Mr Scorgie from NAPTOSA correctly, the employer has been attempting unsuccessfully now for 3 years to consult with unions about a new employment equity plan. If that is the defence of the employer for not having a current employment equity plan, this too is completely unacceptable.

[61] It is correct that unions and employees must be consulted about the preparation of an employment equity plan. However, meaningful consultation does not imply agreement. Employers are not absolved from their responsibility to implement employment equity plans if workshops or other endeavours are unsuccessful or if role players do not attend meetings that was scheduled for consultation. The employer must ensure that he at all times has a valid and current employment equity plan and must proceed to implement it even if there is no cooperation from unions and employees. In the recent case of Munsamy v Minister of Safety and Security, the Labour Court had the following to say in this regard:

“The employer is only obliged to provide a proper opportunity for consultation. It cannot be held against the employer if any particular interest group failed to take up the opportunity of consultation when invited to do so. Guidelines of the Code provide that when a representative union or body refuses or fails to take part in the consultation process, the employer must record the circumstances in writing.

The consultations need not result in agreement on the issue for consultation and it remains the employer’s responsibility in terms of the Act to proceed with implementing employment equity”

[62] First respondent can therefore not possibly have any excuse for not having a valid and current employment equity plan for many years now. First respondent needs ensure that it publishes an employment equity plan that complies with the Employment Equity Act without any further delay.

What should the employment equity plan contain?
[63] In order to adopt and implement an affirmative action plan, the designated employer must collect information and conduct an analysis of its employment policies, practices, procedures and the working environment, in order to identify employment barriers which adversely affect people from designated groups. This analysis must include a profile, as prescribed, of the designated employer’s workforce within each occupational category and level in order to determine the degree of underrepresentation of people from designated groups in various occupational categories and levels in that employer’s workforce.

[64] The first step in conducting an analysis of the workforce profile is to establish which employees are members of designated groups. This information should be obtained from employees themselves, either from a declaration completed by each employee, or where the employee refuses to complete the declaration or provides inaccurate information, from existing and dependable sources by using reliable historical and existing data such as employment application forms. An analysis of the workforce profile should provide a comparison of designated groups by occupational categories and levels to relevant demographic data of the provincial or national economically active population.

[65] In addition to the demographics, both the availability of suitably qualified people from designated groups in the relevant recruitment area, as well as the internal skills profile of designated employees, should be taken into account. The ‘relevant recruitment area’ is that geographic area from which the employer would reasonably be expected to draw or recruit employees.

[66] Once the analysis has been prepared, a designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce. The employment equity plan represents the critical link between the current workforce profile and possible barriers in employment policies and procedures, and the implementation of remedial steps to ultimately result in employment equity in the workplace. All corrective affirmative action measures to eliminate barriers identified during the analysis must be specified in the plan. An employment equity plan must state

• the objectives to be achieved for each year of the plan;

• the affirmative action measures to be implemented as required;

• the timetable for each year of the plan for the achievement of goals and objectives other than numerical goals;

• where underrepresentation of people from designated groups has been identified, the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals;

What if there is no formal employment equity plan?
[67] I have already explained that it is illegal for a designated employer not to have a current employment equity plan as prescribed by the EEA and that fines can be imposed for such failure. However, this still does not answer the question whether it is unfair to apply affirmative action without a valid employment equity plan.

[68] The reason why I have explained the prescribed contents of the employment equity plan in the previous paragraphs, was to demonstrate how rational, fair and reasonable affirmative action can be, when it is implemented strictly in accordance with an equity plan that complies in all respects with the Employment Equity Act. When affirmative action measures strictly comply with an employment equity plan that strictly complies with the Employment Equity Act, it is very difficult for an arbitrator or Court to interfere with the discretion of the employer.
[69] In several judgements of the Labour Court it has been stated that unless an employer has a formal employment equity plan that complies with all the requirements of the Employment Equity Act, then appointments of weaker candidates from designated groups made by that employer in the name of affirmative action will be unfair. On behalf of NAPTOSA, Mr Swartz also supported the same proposition. I cannot entirely agree with this proposition.

[70] The Constitution provides an independent ground for implementing affirmative action in addition to affirmative action as envisaged in the Employment Equity Act. For that reason it has been said that an employer need not rely on the defence of affirmative action as envisaged in the Employment Equity Act, but may also rely on the defence of affirmative action as envisaged in the Constitution, and that for this reason a formal employment equity plan as prescribed in the Employment Equity Act is not absolutely necessary in order to fairly appoint weaker candidates from designated groups in the name of affirmative action. This however does not mean that an employer can get away with implementing affirmative action without any form of rational planning and goals.

[71] Even the affirmative measures contemplated in section 9 of the Constitution, requires that affirmative action measures must be designed to achieve certain goals, which implies two things – one being substantial and one being procedural. From a substance point of view it is required that the measures must be intended and may be expected to achieve substantive equality, as opposed to irrational discrimination. There must be a link between the measures and their prospects of success. Measures that will be unsuccessful to achieve substantial equality (such as quotas) will not be expected to achieve substantive equality. As far as procedure is concerned, it requires that a degree of consideration, planning, and rationality must have preceded the imposition of affirmative action measures. Affirmative action may never be ad hoc, arbitrary, haphazard and random. In fact the Supreme Court of Appeal has held that a properly considered employment equity policy or plan to redress imbalances of the past through affirmative action, as opposed to ad hoc means, is the way to go in order to achieve representivity and that ad hoc and random affirmative action measures will always be impermissible. The role of Employment Equity plans is to ensure that decisions as to who is to be appointed in the context of affirmative action are not arbitrary or haphazard and do not occasion unfairness.

[72] The case law that states that a formal employment equity plan complying with the strict requirements of the Employment Equity is not a requirement, still requires the employer to have some form of rationally planned employment equity policy:

“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 therefore 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”

[73] The fact that a formal employment equity plan that complies with the EEA is not a requirement to implement affirmative action and that a more informal policy may also be sufficient does not mean that it is not important for a designated employer to have a formal affirmative action plan that complies with the Employment Equity Act. Apart from the fact that it is illegal for a designated employer not to have a formal employment equity plan and that he can be fined, there are benefits to be gained by an employer for having a formal employment equity plan.

[74] That benefit is that if an employer has an affirmative action plan or policy that complies with the Employment Equity Act, this will make it much easier for him to rely successfully on affirmative action as a defence when he appoints a weaker candidate in the name of affirmative action. Where an employer appoints a weaker candidate in the name of affirmative action when that employer has no employment equity plan whatsoever, it may be very difficult to determine whether such discrimination was fair.

Did the employer act within a rationally planned policy?
[75] It is common cause that first respondent who is the employer of educators in the GDE, has delegated his authority to make appointments to District Directors. The Gauteng Education Department has approximately 15 District Directors. When first respondent delegated his powers to these district directors without providing them with a carefully planned employment equity plan or policy that they all had to follow in a consistent coherent manner, he created a recipe for disaster that would make it completely impossible for employment equity to implemented and applied in a consistent, rational and fair manner in the GDE. The reason for this is obvious. With 15 different district directors and no uniform affirmative action policy that they are all required to follow consistently, it is highly improbable if not completely inconceivable, that there could ever be consistency in the manner in which the 15 different directors would apply affirmative action. Each director will adopt his own policy because they were all left to their own devices with no guidance.

[76] We do not even have to speculate about this. We know for a fact that in the Johannesburg Central District affirmative action is being applied on a school to school basis, without any regard to the employment equity profile at other schools in that district or the province and that affirmative action is applied on the basis of the gender and race profile of teachers at the particular school and the race profile of learners enrolled at that school. We also know for a fact that in the Tshwane North District the District Director refuses to apply any form of affirmative action because the GDE does not have a current provincial employment equity grid.

[77] Two of these directors accordingly have completely different approaches regarding affirmative action. These different approaches amongst different directors who are responsible for making appointments and implementing affirmative action, in its own already proves that affirmative action is not being applied consistently, rationally and fairly by first respondent, but in an unfair, inconsistent, arbitrary, haphazard and ad hoc manner which differs from region to region. There is no unity or inter-relationship between the approaches of the various District Directors and therefore in the workplace (GDE) as a whole, which leads me to conclude that the form and implementation of affirmative action that was and is being used, was and is not rationally related to the cause of the disadvantage.

[78] If one solely focus on the manner in which the director of Johannesburg Central approaches affirmative action, her approach cannot be said to be in terms of rational policy measures that are expected to achieve substantive equality as opposed to unfair discrimination. Unlike the employer in the case of Willemse v Patelia, who had policy statements as well as targets with reference to its employment equity goals and objectives and an employment equity policy statement and race, gender and disability profiles for the department, the District Director of Johannesburg Central had nothing of the kind:

78.1 She did not have any employment equity profiles of the educator workforce in the province as a whole or even in her district as a whole;

78.2 She did not even have any statistics about the demographic profile of the provincial (or national) economically active population and/or the pool of suitably qualified people from designated groups from
which the employer may reasonably be expected to promote or appoint employees;

78.3 Most importantly the Director did not have numerical equity goals for either her province as a whole or even for her district as a whole. There was no basis upon which she could compare the employment equity profile of the workforce at different schools in her province or her district with the demographic profile of the provincial (or national) economically active population and/or the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees. Without this information she has no basis upon which she could calculate numerical goals/targets to be achieved and without affirmative action goals/targets for the organization as a whole, affirmative action can only be haphazard and irrational; .

[79] Without numerical goals for a workplace as a whole, and timetables within which numerical goals ought to be achieved, it would be extremely difficult, if not impossible for any employer to implement affirmative action in a rational, proportional and fair manner. This is not to say that numerical goals, once determined should be rigidly applied. Numerical goals are not quotas. Numerical goals are permissible but quotas are not. Numerical goals should merely be seen as benchmarks to measure progress and not hard and fast objectives that have to be met at all costs. One of the reasons why the Court rejected the employer’s affirmative action goals in Ensley Branch NAACP v Seibels was indeed because they were treated as “absolute commandments” rather than goals.

[80] Accordingly, even if a formal affirmative action program that complies with the Employment Equity Act is not a prerequisite for applying affirmative action fairly, and even if one ignores the inconsistent manner in which the District Directors of Johannesburg Central and Tshwane North approaches affirmative action, then the manner in which Ms Seate, the District Director of Johannesburg Central applied affirmative action, was completely irrational and unfair and not as intended in the Constitution and Employment Equity Act.

Representivity at school level
[81] Mr. Swartz argued that an education department may not implement affirmative action at school level, but is confined to implementing it at provincial level. He argued that the reason for this is that the workplace is the province and not the school. I disagree with this proposition.

[82] The 1996 Constitution of the Republic of South Africa is now the supreme law of the Republic and the obligations imposed by it must be fulfilled. Any law or conduct inconsistent with the Constitution is invalid. For Mr. Swartz’s argument and interpretation of affirmative action to be valid, it needs to be in compliance with the Constitution.

[83] For his argument to be in compliance with the Constitution, it would have to mean that our Constitution supports the argument that provided that an employer ensures that people of all races are equitably represented within his entire workforce, it is permissible to have racially segregated compartments within the workforce in terms of which Africans, Coloureds, Whites and Indians all work separately in their “own” different compartments with people from the same racial group. If this is what is intended by our Constitution, it would mean that our Constitution condones and promotes a culture which is reminiscent of the own affairs culture of apartheid. This is exactly what our Constitution does not stand for.

[84] The preamble to our Constitution provides that one of the aims of our Constitution is to “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”. I fail to see how one can heal divisions of the past when a workforce that has become racially segregated under apartheid and still consists of separate racially segregated components, is not transformed so that the separate components that exist are made representative.

[85] I am satisfied that the Employment Equity Act and Constitution enjoin employers to ensure equitable representation of suitably qualified people from all designated groups in all categories and levels in the workforce – throughout the workforce and workplace – and in provincial government, both at departmental (provincial) level and at the level of the component/institution (which in public education means school level).
[86] The reality is that many years after the downfall of apartheid many schools are still racially segregated. At schools situated in residential areas where predominantly African people reside, the educators are predominantly, if not exclusively Africans. In residential areas where predominantly Coloured people reside, the educators are predominantly Coloured people. In former white areas, which have now become integrated to some extent, there seems to have been some integration at school level, but many of the former model C schools in those areas still have predominantly white educators. This state of affairs is undoubtedly a legacy of the discriminatory practices of our past and must be addressed. The reality is that so many years after 1994, there had been very little integration at school level. This should be of serious concern to all because the Constitution is aimed at healing the divisions of the past and enshrines the right to substantive equality.

[87] Integration should start at school level. We cannot permit an own affairs culture to impress itself at school on children as this would make it difficult for them to become part of a fully integrated society and workplace when they leave school. It is time to move away from this “own affairs” culture which is a legacy of our past and to ensure that the educators corps in our schools become integrated and representative. This can only be achieved if affirmative action measures are applied not only at provincial level but also at school level.

[88] However the way in which the district Director Ms Seate went about in applying affirmative action at school level was completely wrong, unreasonable, irrational and unfair. An employer cannot fairly and rationally implement affirmative action at component (school) level without reference to employment equity profiles and goals at departmental (provincial) level. The workplace within which employment equity must be implemented by provincial education departments, is after all the province as a whole. As soon as provincial education departments apply affirmative action on an ad hoc school to school basis, having reference only to equity profiles and goals of that specific school, without any reference to equity profiles and goals at provincial level, this will necessarily mean that affirmative action is being applied in an ad hoc, haphazard manner.

[89] This could lead to great injustices and unfairness when a weaker candidate is promoted in the name of affirmative action at a particular school whereas the race and gender of that candidate is already completely overrepresented at provincial level in that post level, while the race and gender of the stronger candidate who is not appointed and who is also from a designated group is completely underrepresented at provincial level.

[90] A further practical consideration to be taken into account is that when vacancies arise in schools situated in areas where exclusively African people reside, it is mostly only Africans who apply. This is sad, but is the reality. The result is that educators at schools in those areas are practically exclusively African. That factor, taken together with the fact that Africans are the majority in Gauteng whereas Coloureds is a very small minority in Gauteng, increase the probability that is not unlikely that at present Coloured males might be far more underrepresented at provincial level in Gauteng at post level 3 compared to African women. In fact once statistics are available it might even be shown that African women might be completely overrepresented. I concede that we do not know this as a fact. We in fact know very little, precisely because we do not have the provincial equity statistics for the GDE as a whole and that is precisely why it is so irrational and risky to apply affirmative action at school level in the manner in which Ms Seate has been applying it. There was no link between the measures she took and their prospects of success in achieving substantive equality. If they achieved anything, it was to discriminate unfairly based on race and gender.

[91] How then should one apply affirmative action at school level? Firstly one should have provincial equity statistics for all department educators employed in the entire province. When a vacancy arises at a school one would then not only look at the equity statistics of the particular school, but also at the equity statistics for the entire province. In the event that it would appear that both Coloured males and African females are both overrepresented (or perhaps both underrepresented) at provincial level in that particular post level, it would probably not be unfair or irrational if one promotes the slightly weaker African female instead of the slightly stronger Coloured male based on the fact that Coloureds are sufficiently represented on that post level in the particular school whereas African females are not represented at all in that post level at that school.

[92] However, if one finds that at provincial level African women are completely overrepresented in that post level whereas Coloured males still underrepresented in that post level at provincial level, it would not be rational to promote the weaker African female merely because Africans are underrepresented at that particular school and Coloureds are overrepresented at that school. To do that would mean that for the sake of representivity at the school, the employer is making it more and more difficult for himself to reach affirmative action targets at provincial level. It would also amount to an irrational preference of one race at the expense of another. It would also mean that merit becomes less important and race is elevated to the most important factor in making appointments.
[93] That can never be acceptable and rational because when it comes to the appointment of educators, employment equity considerations must be balanced by the child’s best interests in receiving a proper education.

[94] For these reasons the approach of Ms Seate in applying affirmative action on an ad hoc school to school basis, without taking the bigger picture of all schools at district level and provincial level into account, was irrational, haphazard, not well planned, capricious and unfair.

The race of learners enrolled at the school
[95] In justifying her approach to consider the race of learners at the school when making an appointment based on race, Ms Seate stated that she was entitled to do so because an employer is obliged to promote both equity and representivity and that these concepts cannot both mean the same. According to her one of these terms must mean that she should not only take into account the race and gender of educators at the school but also that of the learners. I completely disagree with the Director.

[96] Her understanding of the difference between “equity” and “representivity” has no basis in law or logic. The difference between the two terms is that the eventual goal of (employment) “equity” is to achieve “representivity” of the country’s population groups, genders and disabilities. Representivity of the workforce in respect of race, gender and disability in all occupational categories and levels in the workforce is the goal. The means to achieve that goal is through employment equity(fairness), in other words through affirmative action measures.

[97] There is no basis in law or equity for companies to employ employees based on the race of their clients and neither is there any basis in law or equity for schools to employ educators based on the race of their learners. To appoint a weaker candidate from one racial group as deputy principal over a stronger candidate from another racial group merely because the majority of learners at the school are from the same racial group as the weaker candidate and that race is not represented at management level, prima facie constitutes unfair discrimination based on race, and therefore unfair conduct. Our Legislation expressly recognizes only three defences to unfair discrimination namely:

• The normal or agreed retirement age;
• The inherent requirements of the job;
• Affirmative Action;
[98] The form of discrimination applied by Ms Seate (namely to prefer one race based on the race of the learners at the school) clearly does not fall within the category of “normal or agreed aged of retirement” or “the inherent requirements of the job”. At first sight it appears to relate to “affirmative action”

[99] However when one takes a closer look at what affirmative action is all about, it becomes clear that what Ms Seate has done cannot be described as affirmative action. The reason is that affirmative action is about ensuring that suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer’s workforce in relation to factors such as the:

99.1 demographic profile of the national and regional economically active population;

99.2 pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;

99.3 economic and financial factors relevant to the sector in which the employer operates;
99.4 present and anticipated economic and financial circumstances of the employer;

99.5 the number of present and planned vacancies that exist in the various categories and levels, and the employer’s labour turnover;

99.6 the anticipated growth or reduction in the employer’s workforce during the time period for the goals;

99.7 the expected turnover of employees in the employer’s workforce during the time period for the goals;

[100] The yardstick or benchmark against which under-representation in the workforce is measured for purposes of affirmative action therefore primarily relates to factors such as the racial and gender demographics of economically active population, suitably qualified people from designated groups from which the employer may reasonably be expecting to promote or appoint employees, etc. It has nothing to do with the racial or gender demographics of the clients or users of the employer, or in the case of schools, the learners or parents that is served by the school.

[101] The approach of Ms Seate to take the race of the majority of learners at the school into account in order to justify racial discrimination, can therefore not be described as “affirmative action” measures. Hence affirmative action cannot be a defence to her unfair conduct against the applicant.

[102] It has however been submitted that the three defences that South African legislation provides against a claim of unfair discrimination is not a closed list, and that similar to the position in Europe, the USA and Canada, our law also recognizes a “general fairness” defence against unfair discrimination. The nature, extent, scope and limitation of that defence, if at all it exists, has not yet been determined by our Courts. The scope of the defence can obviously not be too wide, because as soon as it is too wide, then unfair discrimination might never be unlawful or actionable. In this regard foreign jurisprudence is of assistance. In British Columbia (PSERC) v BCGSEU the Canadian Supreme Court imposed the following restrictions on a general defence of fairness against unfair discrimination:

1 The discrimination must exist for a purpose rationally connected to the performance of the job

2 The discrimination must have been introduced in the bona fide and honest belief that it is necessary for the fulfillment of a legitimate work related purpose

3 The discrimination must be reasonably necessary to the accomplishment of a legitimate work-related purpose, which means that it must be impossible to accommodate the individual employees sharing the
characteristics (i.e race or gender) of the person against whom there is discrimination without imposing undue hardship on the employer.

[103] In applying this test to the conduct of Ms Seate, I will assume in her favour that she was bona fide and honestly believed that her approach will promote representivity. However for her approach to constitute a defence to unfair racial discrimination against Mr Myles, it must also be shown that the race of Mr Myles was such a big problem that it was simply impossible for the employer to appoint him as a deputy principal at the school without imposing undue hardship on the employer.

[104] Undue hardship is a strong term and not easy to establish. It usually implies significant difficulty or expense for the employer. I cannot see on what basis it could be argued that if Mr Myles was appointed, his appointment would have implied significant expense or difficulty for the employer. Form a financial point of view it made no difference whether Mr. Myles (applicant) or Ms. Mashigo (second respondent) was appointed. From an operational point of view it could also not be argued that the employer would have experienced significant difficulty if applicant rather than second respondent was appointed. The fact that the majority of learners at the school are African and that Africans were not represented in the management team of the school in itself cannot be any basis for suggesting that the appointment of a Coloured male instead of an African female would have created significant difficulty for the employer and/or that operations at the school would have been disrupted as a result of his appointment. Clearly then the appointment of applicant could not have caused any undue hardship for the employer.

[105] Accordingly the unfair conduct of Ms Seate against applicant based on his race and the race of the majority of learners enrolled at the school cannot be justified by reason of a “general fairness defence”. Her conduct was unfair and there is no justification in law or in equity for it.

[106] Equity measures (such as affirmative action measures) in order to achieve representivity in relation to race, gender and disability in the workplace, cannot and may not be based on the race of the users (clients in the case of companies and learners in the case of schools) of that workplace. The idea that learners of a particular race should be taught by educators of that same race is reminiscent of the apartheid era. The proposition that the more African learners a school has, the more African educators/managers the school must have, is also unsound.

[107] I now turn to the claim of the Director that she took the race of the majority of learners at the school who are African, into account when making an appointment as it was important to her that a person at management level should be able to speak to them in their own language. With this proposition I can also not agree. When a similar argument was raised by the South African Police when they appointed an African person at a police station situated in an area where predominantly African people resides, Acting Judge Ngalwana described the employer’s conclusion that a police officer will manage better if able to speak the home language of the members of the public in the area served as:
“disturbing in its seeming proposition within the police service of an “own affairs” or “native affairs” existence reminiscent of days best forgotten in the history of this country”

[108] These comments are even more applicable in the context of this case than in the police sector. I am not suggesting that the language of learners enrolled at a school is not important when it comes to the appointment of educators. However, as opposed to the SAPS where communities have no control over the language spoken by police officers deployed at police stations in their areas, the language policy at schools is adequately dealt with in terms of the South African Schools Act. In terms of SASA every school must have a language policy. It is only logical that if for example a particular school has Xhosa as a medium of instruction, then it would be absurd for the school to employ White educators who cannot speak Xhosa.

[109] That is however not the case at EW Hobbs School. The medium of instruction at EW Hobbs School is English. Only English. That is common cause. That being the case, there was absolutely no basis for Ms Seate to take language competency of an African language into account when she made an appointment when competency in an African language was not one of the requirements for the post. To do that merely because the majority of learners at the school are African, but the medium of instruction English only, amounted to an indirect form of discrimination based on race and language against applicant and was unfair.

[110] The fact that the majority of learners at the school are African but the language policy of the school still only recognizes English as the medium of instruction speaks volumes. The language policy of a school is determined by the governing body. With African learners being in the majority at the school, and 15 out of the 32 educators at the school also being African, it should be easy for African parents and educators, if they so want, to ensure that in addition to English, an African language is introduced as a medium of instruction. Once that has been done, fluency in an African Language should become an important criterion in the appointment and promotion of educators at the school. The fact this has not happened yet at this school and that English is still the only medium of instruction, speaks volumes and tells me that the Learners are fluent in English and that their parents want them to be taught in English. Hence, for Ms Seate to have considered the mother tongue of the majority of learners at the school amounted to an indirect interference on her part with language issues at the school. That was completely beyond her jurisdiction. Moreover, she considered an irrelevant factor when making the appointment and in the process acted unfairly against Mr Myles.

THE DISCRETION OF THE EMPLOYER TO MAKE APPOINTMENTS
[111] It is so that appointments remain the prerogative of the employer. Despite the order of preference of the school governing body, the Head of Department (in this case the District Director) may appoint any suitable candidate on the nomination list of the SGB. This however does not mean that the HOD (in this case District Director) is permitted to act capriciously, irrationally or unfairly. The HOD (in this case District Director) must place significant weight on the order of preference of the school governing body because it is the school governing body who has interviewed the candidates and who best understand the requirements of the school and not the HOD. In The Point High School case, the Supreme Court of Appeal explained under what circumstances the decision of the HOD in making appointments may be interfered with and under what circumstances the HOD may appoint any suitable candidate on the nomination list, despite the order of preference on the list:
“The law is now clear that, in exercising this discretion, the HOD is required to act reasonably and, by taking into account all of the relevant factors and considering the competing interests involved, to arrive at a decision which strikes a ‘reasonable equilibrium’. The court has no power to review this decision purely because there may be another, perhaps better, ‘equilibrium’ which could have resulted by attributing more weight to some factor or factors and less to others. If that struck by the decision-maker is reasonable, then it must stand.….if he [the HOD] considers that the governing body has performed its functions properly, the HOD must obviously attribute substantial weight to the recommendations submitted to him. He is called upon to decide upon the appointment of a person from a list of people about whom he may have no personal knowledge. The governing body of such a school, mainly by elected representatives of parents and staff, would naturally be expected to have a reliable comparative picture of the various candidates and their suitability for appointment at the school. Its choice and recommendation would obviously be better-motivated, and more reliable, than any that the HOD could make in the circumstances.

While it is quite correct that he has a specified discretion to disregard the governing body’s motivated recommendation and even its order of preference, he must clearly exercise this discretion in a manner which conforms to the statutory requirements of fair administration in the Constitution and in PAJA and also, in general, with the Department’s policy…” (emphasis added)

[112] The District Director had no rational or reasonable basis not to follow the recommendation of the governing body that applicant should be appointed. She applied employment equity unfairly and irrationally and acted unfairly when she did not appoint applicant.

DID APPLICANT PROVE AN UNFAIR LABOUR PRACTICE?
[113] It is common cause that applicant is employed by first respondent and that if applicant was successful in his application for the post, this would have been a promotion for him. I am satisfied that applicant’s employer has acted unfairly, irrationally and unreasonably and has treated applicant unfairly when applicant was not appointed. The conduct was unfair because the employer appointed a weaker candidate based on an incorrect, irrational, unreasonable and unfair application of affirmative action. A formal admission was made by the employer that applicant was the best of all the candidates who applied for the post. This means that applicant has succeeded in proving that had it not been for the unfair conduct of the employer, he would in fact have been successful.

[114] Accordingly applicant has proved substantive unfairness and not merely procedural unfairness. My finding is accordingly that applicant has proved that an unfair labour practice relating to promotion was committed against him.

XI RELIEF
[115] An arbitrator’s powers in granting relief in unfair labour practice disputes are wide. Section 193(4) of the LRA provides that an arbitrator may determine any unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include (but is not limited to) ordering reinstatement, re-employment or compensation. Section 138(9) of the LRA, provides that an arbitrator may make any appropriate arbitration award including, but not limited to, an award that gives effect to the provisions and primary objects of the LRA or an award that includes, or is in the form of, a declaratory order. It is generally accepted that arbitrators may indeed order the appointment and promotion of employees in unfair labour practice disputes relating to promotion. Courts also often make such orders.

[116] Such orders may only be made if the applicant has proved that had it not been for the unfair conduct of the employer, he would in fact have been successful. Applicant has proved this with the assistance of first respondent who admitted that applicant was the best of all the candidates who applied for the post (including second respondent). Although there is no doctrine of legitimate expectation in promotion, the Labour Court has made it clear that what is always expected is that the best candidate be appointed. Since I have found that the affirmative action measures which respondent had applied in this case were unfair, irrational and unreasonable, I can see no reason why applicant should not be appointed to the post.

[117] It is true that second respondent already occupies the post. Due to the findings I have made, I am of the view that she should never have been appointed to the post. However I was not asked to set aside her appointment and I am accordingly also not making such an order. The fact that second respondent has already been appointed, and that I am not setting aside her appointment, does however not mean that I am not entitled to appoint applicant to the post.

[118] In dismissal disputes, our Courts have held that the mere fact that the employer has appointed another person in a dismissed worker’s post, does not mean that the worker cannot be reinstated into that same post. The worker can be reinstated and it should then be left to the employer to do what he normally does when he has too many employees on his payroll, namely apply operational requirements. There is no reason why the same principles should not apply in promotion disputes.

[119] The effect of my order of appointing applicant to the same post occupied by second respondent, would simply be that when the staff establishment for the school is declared later this year, an educator at the school (probably either applicant or second respondent) would be declared in excess in terms of ELRC Resolution 2 of 2003, which will in all probability lead to her or his transfer to another school. Given the grave injustice that was committed by the employer against applicant I can see no reason why I should not award full back-pay as from the date of appointment of second respondent, calculated at the difference between what applicant would have earned had he been appointed on that day and what he had actually earned since that day.

[120] It is common cause that the date of appointment was 1 July 2012 and that the annual salary scale attached to the post is R243 021. It is also common cause that applicant’s current annual salary is R228 000. My intention is to appoint applicant retrospectively to the post as from 1 July 2012 at the annual salary scale of R243 021. This would mean that he would be entitled to back-pay calculated on the basis of the difference between what he has actually earned between 1 July 2012 and now (based on an annual salary of R228 000) and what he should have earned during that period (based on an annual salary of R243 021). The monthly difference in salaries amounts to R1251,75, the weekly difference to R289,08 and the daily difference based on a five day week, R57,81. Accordingly applicant is entitled to an amount of back-pay of R15194,43 between 1 July 2012 and the date of my award.

AWARD

In the premises I make and publish the following order and award:

1. First respondent’s refusal to appoint applicant Mr. JN Myles in post number JC22CS1006B being that of deputy school principal at post level 3 at E. W. Hobbs Primary School in Johannesburg, constituted an
unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA.

2. Applicant Mr. JN Myles is hereby appointed in post number JC22CS1006B being that of deputy school principal at post level 3 at E. W. Hobbs Primary School in Johannesburg, subject to the following conditions:

2.1 This appointment is backdated and has full retrospective effect as from 1 July 2012;

2.2 Applicant’s annual salary is hereby adjusted to R243 021, with effect from 1 July 2012;

2.3 For purposes of determining whether applicant or second respondent was first appointed to this post on 1 July 2012, it is only fair that my order of appointment takes preference as applicant and not second
respondent should in the first place have been appointed to the post;

2.4 First respondent is directed to ensure that my order of appointment together with salary adjustment is effected in the GDE records and on its computer systems within 14 calendar days from receipt of my award;

3. First respondent is directed to pay to applicant an amount of back-pay of R15 194,43, less income tax and other statutory deductions, before or on the last day of July 2013;

4. First respondent is directed to pay to applicant interest on the amount of R15 194,43 at the rate of 15,% per annum as from the date of this award until date of payment;

5. No order as to costs is made.

Adv D P Van Tonder
Senior ELRC Arbitrator
Cape Town