IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO.:JS950/11
In the matter between
SOLIDARITY o.b.o M P N DE SAMPAIO - Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY - Respondent
APPLICANT'S STATEMENT OF CLAIM IN TERMS OF RULE 6 OF THE RULES OF THE LABOUR COURT
1.
The Applicant will accept notices and service of all documents in this matter at the following address:
C/O Eendracht & D.F. Malan Avenue
P.O. Box 11760 Kloofsig
Centurion, 0046
Fax No (012) 664 1101
Telephone No (012) 644 4300
2.
If the Respondent intends opposing this application matter it must deliver a response within 10 days of service of this statement in terms of sub-rule 6(3) of the Rules of the above Honourable Court, failing which the matter may be heard in the Respondent's absence and an order for costs may be made against that party.
3.
Details of the parties
3.1 The Applicant is Solidarity, a trade union duly registered in terms of the Labour Relations Act No 66 of 1995 ( "the Act") with its principal office situated at c/o DF Malan Avenue and Eendracht Street, Kloofsig, Pretoria.
3.2 In launching this application, Solidarity acts on behalf of Mr. Marco Paulo Nogueira de Sampaio a paid-up member of Solidarity, in terms of section 200 of the Labour Relations Act. For convenience, Mr De Sampaio is referred to below as "the Employee".
3.3 The Respondent is the City of Tshwane Metropolitan Municipality, a local authority established in terms of the provisions of the Local Government Municipal Structures Act, 1998 and with registered address and main place of business at Noorvaal Building, 225 Vermeulen Street Pretoria 0001, Tel: 012 358 8041, Fax: 012 358 8033 alternatively 9th Floor Sanlam Plaza East Schoeman Street PO Box 6338, Pretoria 0001, Tel: 012 358 4351, Fax: 012 358 4073 with further particulars unknown to the Applicant:
4.
The above Honourable Court has jurisdiction to hear this matter by virtue of Section 6 of the Employment Equity Act.
5.
Statement of the facts that will be relied on:
5.1 The Employee is a white male, currently employed by the Respondent in an acting position as Deputy Director: Systems Development (Region A) as from August 2008. The aforementioned position is in the Department of Public Works and Infrastructure Development, Division Water and Sanitation, Section Waste Water Collection. The Employee commenced service with the First Respondent during September 1999. He currently earns a gross salary of R47 489, 57 (forty seven thousand four hundred and eighty nine rand fifty seven cents) per month.
5.2 The position of Deputy Director (Systems Development) Region A (herein after referred to as "the post") was advertised during November 2008. The Employee applied for the post. It later became known that the Employee and other white candidates who were placed on the shortlist for interviews were removed from the short list. The reason given was that the appointment of a white male would not improve the department's "equity profile". The post was not filled because a suitable designated candidate could not be identified. The Employee continued to act in the post.
5.3 The post was re-advertised in June of 2009, and the Employee applied again. Again, the Employee was not shortlisted for the same reason. In February 2011, the position was advertised yet again, and the Employee applied yet again. In the advertisement the Respondent indicated that:
"Our policy is to provide equal employment opportunities to all qualified persons without regard to race, religious belief, age, national origin, marital status, physical disabilities, HIV status, gender, social origin, culture, political opinion or conscience and sexual orientation."
The advertisement further indicated that:
"It is our intention to promote representivity in the City of Tshwane through the filing of these positions. Candidates whose transfer/promotion/appointment will promote representivity will therefore receive preference."
5.4 The Employee was placed on the shortlist but on the instructions of the Human Resources Department his name was again removed, again for the reason aforestated. No suitable designated candidate was appointed and the Employee continued acting in the position.
5.6 The Employee lodged a grievance on the 30 May 2011. On the 11 August 2011 stage three of the grievance procedure was held. During the grievance meeting the Employee was informed by the Respondent that it would not be fair to place him on the short list because the Respondent "did not wish to create a false expectation". The matter was not resolved because the employees representing the Respondent indicated that they were not authorised to take a decision. Their view was that the matter should proceed to arbitration under the auspices of the South African Local Government Bargaining Council.
5.7 On 29 August 2011 Solidarity directed a letter on behalf of the Employee to the Respondent in which it was inter alia requested that the Respondent provide written reasons for why the Employee was not placed on the shortlist of candidates. On 8 September 2011 the Respondent replied in writing and indicated that the reason why the Employee was not invited to the interview was that his appointment would not have improved the equity profile of the division. The letter also stated that white males are "over represented" in the division.
5.8 When the post was re-advertised yet again, the Employee's representatives sought confirmation from the Respondent whether the Employee‘s application would be considered this time. The Respondent stated in a letter dated 21 September 2011:
"Your client is at liberty to apply for the position like anyone else interested in the post."
5.9 The Employee duly applied for the position yet again in September 2011. However, he has to date received no indication from the Respondent whether he has been shortlisted, or confirmation that his application has received any consideration. Meanwhile, the Employee continues to act in the post.
5.10 The post is a professional position for which an incumbent requires an appropriate B.Tech, B.Eng or B.Sc Degree in Civil Engineering, and must be registered as a Professional Engineer or Technologist. It is submitted that the Employee possesses the required qualifications and is further registered at the Engineering Council. He has been in the post for more than three years, and has performed entirely satisfactorily.
5.11 The Applicant pleads that by ignoring the Employee's application and insisting on appointing a designated candidate, if one can be found, the Respondent failed to take into consideration the pool of suitably qualified employees and the factors listed in section 42 of the Employment Equity Act.
5.12 The Applicant pleads further that an employer who wishes to implement affirmative action measures must do so in terms of an approved employment equity plan, and that at all material times herein the Respondent did not have such a plan.
5.13 The Applicant accordingly pleads that the Employee has been the victim of unfair discrimination, and that the Respondent cannot justify such discrimination on any basis recognised in law. The Applicant pleads further that, by refusing to short list qualified white males on "equity" grounds, the Respondent has raised an absolute barrier before white male employees.
5.14 The Applicant pleads further that the prejudice suffered by him the Employee be aggravated when the Respondent abolishes all acting positions, as it plans to do in November 2011. This means that, if he continues acting in the post, he will do so without an acting allowance.
5.15 The matter was referred to the Commission for Conciliation Mediation and Arbitration and on the 19th of October 2011 a certificate of non-resolution was issued.
5.16 The Applicant accordingly submits the Respondent has unfairly discriminated against the Employee on the basis of race.
6.
The legal issues that arise from the above facts:
6.1 whether the Employee was directly discriminated against on the basis of race;
6.2 whether, if the Employee was discriminated against, such discrimination was unfair;
6.3 whether the Respondent is entitled in the circumstances to raise equity targets as a defence to the claim of unfair discrimination, more particularly in circumstances where it is clear that there is no approved employment equity plan;
6.4 whether the Respondent was required by law to consider the merits of the Employee ‘s application and, if so, whether it did so;
6.5 whether the Respondent acted arbitrarily, capriciously and/or according to a wrong principle by refusing to consider the Employee ‘s appointment solely because it would not "enhance" employment equity targets;
6.7 whether, by not appointing the Employee, the Respondent breached its statutory and constitutional obligation to provide effective service delivery in the most efficient manner possible;
6.8 whether, by not appointing the Applicant, the Respondent has promoted the goal of employment equity in the manner and for the purposes contemplated by the Employment Equity Act 55 of 1998 ("the EEA") and the Constitution;
6.9 whether in light of scarcity of people qualified for the post, the Respondent took into consideration the pool of suitably qualified candidates and other legislative requirements.
6.10 whether in its attempts to achieve demographic representation in the department, the Respondent gave any or adequate consideration to the suitability, qualification and experience of applicants, including the Employee.
6.11 Whether, if the Respondent is found to have complied with the requirements of the EEA, that Act is constitutionally compliant;
6.12 whether the Employee is entitled to relief.
7.
Relief sought
7.1 An order declaring that the Respondent unfairly discriminated against the Employee on the grounds of race.
7.2 An order directing the Respondent to appoint the Employee on the top notch in the position of Deputy Director: Systems Development (Region A), or to any suitable vacant post of similar rank, with retrospective effect to 1 April 2011.
7.3 An order directing the Respondent to compensate the Employee with an amount equivalent to the difference between the salary he has earned as from 1 April 2011 and the salary he would have earned had he been promoted then.
ALTERNATIVELY
An order directing the Respondent to pay the Employee compensation in the amount that the Court deems fit to grant.
7.4 An order directing the Respondent to take steps to prevent the same unfair discrimination or any similar practice occurring in future in respect of other white male applicants.
7.5 Publication of the Court's order in the event of the Applicant being successful.
7.6 Such further and/or alternative relief as the Honourable Court deems fit to grant.
9.
Schedule of documents
Attached is a schedule of documents, which are material and relevant to the issue.
SIGNED AND DATED AT ON THIS DAY OF 2011.
(SGN) D.J. GROENEWALD
SOLIDARITY BUILDING
CNR. EENDRACHT &
D F MALAN AVENUES
KLOOFSIG
PRETORIA
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