IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JS763/08
In the matter between - -
SOLIDARITY - First Applicant and
H S. DENYSSCHEN - Second Applicant
and
DEPARTMENT CORRECTIONAL SERVICES - First Respondent
MINISTER OF CORRECTIONAL SERVICES - Second Respondent
APPLICANTS' STATEMENT OF CLAIM IN TERMS OF RULE 6 OF THE RULES OF THE LABOUR COURT
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DETAILS OF THE PARTIES
3.1 The Applicant is SOLIDARITY TRADE UNION, a registered Trade Union, registered as such in terms of Section 96 of the Labour Relations Act No. 66 of 1995 (hereinafter referred to as the "Act"), with principal office situated at corner of Eendracht Street & DF Malan Drive, Kloofsig, Pretoria.
3.2 The Second Applicant is Mr. H.S. Denysschen a major male employed by the First Respondent.
3.3 In launching this application Solidarity acts on behalf of the Second Applicant as paid-up member of Solidarity Trade Union, in terms of section 200 of the Labour Relations Act.
3.4 The First Respondent is the Department of Correctional Services established in terms of the Correction Service Act, an employer as defined in the Labour Relations Act 66 of 1995, headed by Minister of Correctional Services, an organ of state as Contemplated in terms of section 239 of the constitution of the Republic of South Africa, Act no 3 of 1996.
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STATEMENT OF THE FACTS THAT WILL BE RELIED ON TO ESTABLISH THE SECOND APPLICANT'S CLAIM
5.1 The Second Applicant is white male employed by the First Respondent as a Senior Provisioning Administration Officer, employed at the Logistics department of the First Respondent and employed by the First Respondent as from 1986. The Second Applicant earns R145 920, 00 (one hundred and forty five thousand nine hundred and twenty rand) per annum.
5.2 During May 2007 the First Respondent advertised various post, one of them namely Post 51 (Assistant Director: Pas System Management: Directorate Logistics).
5.3 The abovementioned posts were not advertised as designated posts for achieving affirmative action, and it was specifically stated in the post advertisement letter that all interested applicants who comply with the minimum set requirements of a specific post, irrespective of race/gender may apply. This meant that the Second Applicant had the right to apply for the aforementioned positions and be considered therefore.
5.4 Second Applicant duly applied for Post 51 and was placed on the first short list dated 27 July 2007 as well as the second short list dated the 7th of September 2007.
5.5 The Second Applicant was accordingly invited for an interview on the 21s1 of January 2008 before a panel consisting of the following members: C. Dussè, M.E. Tshabalala, R.M. Zulu, J Mogolo.
5.6 It will be submitted at hearing that the Second Applicant was recommended for the post by the interview panel. However the Second Applicant later received information that the post for Assistant Director PAS Systems Management will not be filled now as it does not fit the equity plans of Logistics.
5.7 It will further be submitted at trial that the DC Human Recourses Management indicated to the CDC that in the case of Logistics posts it needed to condone cases where the equity requirements are not met due to the scarcity of the skill and the high vacancy rate in those categories.
5.8 on the 5th of May 2008 the Second Applicant submitted a formal grievance with regards to the advertised post. Directorate Logistics. Seeing that the Second Applicant received no answer he again directed a letter to the Director, Human Resources on the 10th of June 2008, requesting feedback on his grievance.
5.9 On the 18th of July 2008 the Second Applicant received a letter from Mr. S.A. Tsetsane from CDC Corporate Services, in which letter Mr. Tsetsane stated that an employee does not have the right to be short-listed or to be appointed, and confirms however that the Second Applicant was shortlisted and considered. Mr. Tsetsane states that the Second Applicants possible appointment could unfortunately not be approved based on the Department's Equity targets.
5.10 It is submitted that he position of Post 51 has not yet been filled and that the Second Applicant has been acting in Post 51 as from the 10 of July 2008 up and till the filing of this application with full responsibilities and delegated authority.
5.11 The matter was referred to the Commission for Conciliation Mediation and Arbitration on the 13tI of August 2008 for conciliation, after which Commissioner P.J. van der Merwe on the 8th of September 2008 issued a certificate referring the matter to the Labour Court seeing that it remained unresolved.
5.12 It will be submitted at trial that the imperative of affirmative action must be balanced with the need for an efficient public service, that the Second Applicant was the recommended candidate by the interview panel, he qualified for the position in accordance with the advertisement criteria, that the Human Resources Management specifically staled that they need to condone cases where the equity requirements are not met due to the scarcity of the skill and the high vacancies and that the Second Applicant is acting in the position he may not be appointed in due to his race.
5.13 It will further be submitted at trial that the First Respondent has already met their equity targets.
5.14 It will further be submitted at trial that the actions of the First Respondent was an Ad hoc barrier seeing that another white male was appointed in the same deportment during the year, and it is therefore submitted that the affirmative action measures was not applied consistently and fairly.
5.15 The actions of the First Respondent had a serious impact on the Second Respondent as it frustrates the Second Respondents ambition for advancement in his chosen career and further denies him enhanced status and benefits.
LEGAL ISSUES THAT WILL ARISE FROM THE ABOVE FACTS
6.1 Second Applicant was subjected to differentiating treatment on the basis of his colour, namely white
6.2 Had the Second Applicant not been white he would not have been subjected to differentiation and the fact that he is white is the dominant cause for the pertinent differentiating treatment he received from the First Respondent.
6.3 As a result the Second Applicants submit that Respondent had unfairly discriminated against him, as contemplated in section 6(1) of the Employment Equity Act 55 of 1998 on the listed ground of colour.
6.4 It is established law that if an employee successfully links differentiation with a listed ground, this is not only discrimination, but is also presumed to be unfair. Second Applicant was not promoted simply because he is a white person. Such direct discrimination is unfair and cannot be defended on the grounds of the inherent requirements of the job, affirmative action consistent with the Employment Equity Act or on a basis that the discrimination is generally fair.
6.5 The advertised position was not for designated persons only and Respondents actions of leaving posts 51 vacant, while Applicant's are still required to act in this position, is unfair.
6.6 It is established low that on entity such as Respondent, which performs a cardinal role in society, must be alert to the fact that extensive affirmative action measures, when implemented, can be insufficient to address the vacancies and operational needs o a particular unit and may hinder the need for efficient public service.
6.7 Applicants submit that such is the case in the Logistics department of First Respondent where Second Applicant is employed. Due to the highly specialised skills required for post 51, the Applicant was the only persons recommended to fill the aforementioned position.
RELIEF SOUGHT
Applicants pray that the above Honourable Court grants the following relief:
7.1 An order that Respondent unfairly discriminated against the Applicant on the basis of race, in terms of Section 6(1) of the Employment Equity Act;
7.2 Ordering that: the Applicant be promoted to the rank of Assistant Director PAS System Management with retrospective effect from 4 June 2008.
7.3 Ordering that the Second Applicant be paid compensation in terms of Section 50(2) (a) of the Employment Equity Act and/or damages in terms of Section 50(2) (b) of the Employment Equity Act
7.4 Costs of suit;
7.5 Further and / or alternative relief;
SCHEDULE OF DOCUMENTS
Attached is a schedule of documents marked annexure "A", which are material and relevant to the dispute.
DATED AT CENTURION ON THIS 3 DAY OF NOVEMBER 2008
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