Labour Court Judgement JS 91902 Mnguni v Gumbi

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Labour Court Judgement JS 91902 Mnguni v Gumbi ...


    December 2006

    C O N T E N T S

    CASE ALERTS ............................................................................................................................................................................ 2

LABOUR COURT & LABOUR APPEAL COURT DECISIONS ...................................................................................................... 4

DECISIONS: OTHER DISPUTE RESOLUTION FORUMS ............................................................................................................ 7


    ? Race discrimination and bias claims ........................................................................................................................................ 9

    ? The retrenchment guidelines: are they getting any clearer?.................................................................................................... 11

    ? Confusion borne out of public holidays .................................................................................................................................. 13

    ? Inherent requirements of the job ............................................................................................................................................ 16


International Labour Organisation calls for “ambitious reforms” in labour inspection ...................................................................... 18

    The International Labour Organisation and collective bargaining .................................................................................................. 20


    Alucia Mdaka

    Dorothy Khosa

    Lucky Moloi

    Nersan Govender

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    By Alucia Mdaka

    NW4657-04 Bothomane v TUFUSA Commissioner: Eberdohn WE12675-05 Meleni & Others v Rohloff Administration: - Dismissal Procedural fairness Bias Presiding officer in Commissioner: Wilson disciplinary hearing involved in pre-investigation. Polygraph test. Dismissal Substantive fairness Breach of trust Employee dismissed for arranging amalgamation with another union and The applicants were dismissed for refusing to undergo breach of employer’s constitution. polygraph test after the respondent had experienced a high

     stock loss in one of its outlets. However, some of the employees The applicant was dismissed for unlawfully signing an had agreed to undergo a test and had passed it and no action amalgamation agreement with another union (Mouthpeace had been taken against them. The respondent claimed that Workers Union), and for breaching the employer‟s constitution. several employees had admitted that they were part of a “theft

    The applicant claimed that the executive committee had ring”. approved the amalgamation agreement. He denied that he had done anything contrary to the union‟s constitution. The applicant Noted: That the respondent had led no direct evidence against also claimed that he was not informed of the disciplinary hearing. any of the applicants. The commissioner noted that all

     applicants had refused to take a polygraph test without giving Substantive fairness any reason.

    Noted: That the applicant had never fulfilled his intentions to Also noted: That it is permissible to dismiss a group of call a witness to prove that the executive committee had employees who have participated in a collective misconduct if approved the amalgamation with the Mouthpeace Workers they have a common purpose or if they were aware of the Union. That the respondent‟s evidence had proved that the misconduct. The commissioner also noted that a number of applicant had breached his duties and in so doing had respondent‟s witnesses had presented hearsay evidence based undermined the trust relationship between himself and the union on the information provided by the informer. However, the

     probative value of that evidence was good and the employees, Held: That the applicant‟s dismissal was, therefore, upon whose hearsay evidence was based, had refused to testify substantively fair. in spite of having been subpoenaed by the respondent.

    Procedural fairness Further noted: That the presiding officer had given two of the

     applicants a second chance to undergo polygraph test and Noted: Turning to the applicant‟s procedural challenge, the when they refused to do so, they were charged with a new commissioner noted that the applicant had been notified of the offence. disciplinary hearing.

     Held: The dismissals of the applicants were upheld. Also noted: That the presiding officer who had chaired the hearing was unsuitable because he was the one who handed Case references the notification of a disciplinary hearing and had also been involved in the investigations. The commissioner also noted that Hlatshwayo v Barrier Angelucci MENT 1283 (MEIBC) it was impossible for the presiding officer to approach the matter Federal Council of Retail & Allied Workers v Snip Trading (2001) with a balanced and open mind. 7 BALR 669 (P)

     NUMSA obo Ncongwane v Assmang Chrome Machadodorp Further noted: That since the applicant had not attended the Works (MEGA 6803) MEIBC hearing, he had been deprived of his right to state his case. Southern Sun Hotels (Pty) Ltd v SACCAWU & Another JA33/99

     (LAC) Held: That the applicant‟s dismissal was procedurally unfair. The respondent was, therefore, ordered to compensate the WE4541-06 X v W Commissioner: Christie applicant an amount equivalent to two months‟ remuneration. Sexual harassment.

    Case reference The respondent, a part-time company doctor, was charged with

     breaching the company‟s sexual harassment policy by using

    Mahlangu v CIM DELTAK, Gallant v CIM DELTAK (1986) 7 ILJ inappropriate method when examining female applicants during 346 (IC) pre-employment medical examination. The respondent claimed

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    that he had done nothing wrong during the examinations, but Held: That the application was dismissed. The applicant was, conceded that some women might have felt uncomfortable therefore, ordered to pay the respondent‟s the amount because of the nature of the examinations. equivalent five days of the loss of production.

    Noted: That of the ten employees who had been interviewed Case references during investigations, five had found nothing wrong with the manner in which the respondent had conducted the Amalgamated Pharmaceuticals Ltd v Grobler NO & Others examinations. The commissioner noted that the South African (2004) 6 BLLR 537 (LC) Health Professions Council had no specific guidelines for Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) conducting examinations. Furthermore, both the company‟s Board of Executors Ltd v McCafferty (1997) 7 BLLR 835 (LAC) code on sexual harassment and the statutory code defined Boshoff v Slit Steel (Pty) Ltd (1996) 1 BLLR 42 (IC) sexual harassment as misconduct of a sexual nature. Buthelezi v Shoprite (2000) 12 BALR 1359 (CCMA)

     Chamber of Mines of SA v Council of Mining Unions (1990) 11 Also noted: That the tests for heart and lung conditions should ILJ 52 (IC) be conducted when a patient is undressed. CAN v CCAWUSA & Another (1991) 12 ILJ 340 (LAC)

     Cronje v Bloemfontein TLC (1997) 18 ILJ 862 (CCMA) Held: That some of the women who had felt uncomfortable Hoch v Mustek Electronics (Pty) Ltd (1999) 12 BLLR 1287 (LC) while these tests were conducted did not mean that the doctor‟s Komane v Fedsure Life (1998) 2 BLLR 215 (CCMA) conduct constituted sexual harassment. The commissioner held Lahee Park Club v Garratt (1997) 9 BLLR 1137 (LAC) that by remaining passive during the examinations, the Lekota v First National Bank of SA Ltd (1998) 10 BLLR 1021 complainants had all impliedly consented to the examinations. (LC)

     Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ Also held: That in the context of a medical examination of 673 (LAC) intimate parts of the body, a doctor‟s conduct only constitutes Maduna v Brollo Africa (Pty) Ltd (1995) 1 BLLR 33 (IC) sexual harassment if it is not conducted for a legitimate purpose. Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC) However, the evidence provided by the complainants did not Mncube v Cash Paymaster Services (Pty) Ltd (1997) 5 BLLR prove that the respondent had an illegitimate purpose. The 639 (CCMA) respondent was, therefore, found not guilty of sexual Moloi v Euijen & Another (1997) 8 BLLR 1022 (LC) harassment. Mostert v Dorbyl Automotive (1999) 1 BALR 4 (CCMA)

     NETU obo Upton & Another v Rustenburg Platinum Mine & ECPE714-05 Simani v Coca-Cola Fortune - Commissioner: Another (2001) 4 BALR 378 (CCMA) Fouchè NUM & Others v Driefontein Consolidated Ltd (1984) 5 ILJ 101 Bribe. (IC)

     NUM v East Rand Gold & Uranium Co (1992) (1) SA 700 (A) The applicant was one of the drivers who were dismissed for Primo v Pick n’ Pay Durban Hyper (2000) 7 BALR 794 (CCMA)

    bribing guards to allow them to remove company stock without Reyneke v Pick n ’Pay (2000) 4 BALR 394 (CCMA)

    authorisation, and sold the stock for their personal gain. The SACCAWU v Foschini Group (Pty) Ltd (1998) 4 (6) SALLR 322 applicant denied involvement in the scheme, and claimed that (CCMA) he had passed a polygraph test during investigation. SACCAWU obo Nyusela v Woolworths (Pty) Ltd (1999) 8 BALR

     947 (CCMA) Noted: That the fact that the applicant had passed the SAMWU obo Damon v Cape Metropolitan Council Ltd (1999) 20 polygraph test did not alter the fact that he was not a credible ILJ 714 (CCMA) witness. The commissioner noted that video evidence was also Schana v Control Instruments (Pty) Ltd (1991) 2 (3) SALLR 49 used as another evidence which showed the applicant acting in (IC) a suspicious manner. That the respondent‟s evidence indicated Standard Bank of South Africa Ltd v CCMA & Others (1998) 6 that the applicant had left the factory with an additional pallet BLLR 622 (LC) containing 56 cases of soft drinks which ware not accounted for. Swiles v Pep Stores (Pty) Ltd (1997) 4 BLLR 503 (CCMA)

     Twana v Weir’s Cash & Carry EC3455-01

    Zungu v Steenkamp Transport (1998) 11 BALR 42 (IC)

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     By Poso Mogale

Labour Court: JS371/03

    Van der Velde v Business Design Software (Pty) Ltd & Another (2)

    Procedural fairness Dismissals related to s197 transfers.

The Labour Court had to determine whether the applicant was automatically dismissed as listed in s187 (1) (g) of the LRA.

    Alternatively, it had to determine whether he was dismissed for a reason related to the employer‟s operational requirements.

    Almost two years after the applicant was employed as the first respondent‟s general manager and managing director in-waiting, the first respondent was purchased by the second respondent. Subsequent to that, there were concerns that the first respondent had many senior managers. The applicant lost the management buy-out bid to the first respondent‟s managing director.

    The applicant was then given an option to resign, stay on and face disciplinary action or retrenchment. When the applicant opted for retrenchment the company refused and, instead, offered him the post of administration manager on reduced terms. The applicant

    was, subsequently, dismissed after he rejected that offer.

Held: That the first issue for determination was whether the dismissal was related to the transfer.

Noted: That different approaches had been adopted to the question of the onus where employees claim that their dismissals were

    automatically unfair. However, the position appears to be that such employees must establish that they were dismissed, that the action concerned was related to a prohibited reason and that there is a causal link between the dismissal and the transfer. If the employee makes out a prima facie case, the employer must then satisfy the court that the dismissal was for an acceptable reason.

Also noted: That the reason and the transfer must be closely related. To balance the interest of employees and employers,

    employees who claim that their dismissals fall within the scope of section 187 (1) (g) must prove the casual link to the transfer as contemplated by section 197. If the employee discharges that burden, the employer must establish that the true reason for the

    dismissal was not related to the transfer.

Turning to the facts

Held: That the applicant had adduced sufficient evidence to prove that his dismissal and the transfer of the business were probably

    causally linked.

Also held: That there was no evidence to suggest that the applicant would have been dismissed were it not for the transfer. The

    transfer was, therefore, the real and proximate reason of the dismissal. The applicant‟s dismissal was, accordingly, automatically

    unfair and 12 months compensation was ordered.

Case references

Halgang Properties CC v Western Cape Workers Association (2002) 10 BLLR 919 (LAC)

    Kroukam v SA Airlink (Pty) Ltd (2005) 12 BLLR 1172 (LAC)

    NEHAWU & Others v University of Cape Town & Others 2003 (2) BCLR 154 (CC)

Labour Court: C334/2005

    Wallace v Du Toit: Judge Pillemer (Acting)

    Discrimination Automatically unfair dismissal - Dismissal based on pregnancy.

The applicant was employed as an au pair. Two years later she fell pregnant and was, subsequently, dismissed. She claimed an

    automatically unfair dismissal and sought compensation. The employer‟s contention was that the applicant was informed during the

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interview that her employment would be terminated if she fell pregnant. The applicant, however, disputed that she had been told that

    being childless was a condition of employment.

Held: That on the balance of probabilities, the verbal agreement between the parties did not contain a term that the employment

    would terminate automatically if the applicant fell pregnant. The Court, accordingly, held that the applicant had been dismissed.

Also held: That since it could not be accepted that not being pregnant or a parent was an inherent requirement of the job of an au

    pair, the dismissal amounted to unfair discrimination and was an automatically unfair dismissal.

Turning to the relief

Noted: That the employment relationship has broken down and, therefore, reinstatement was not an option.

Also noted: That simultaneous claims for damages under the EEA and compensation under the LRA could create an unfair

    duplication to the respondent.

    Held: That the applicant should be awarded R25 000 as a solatium and the equivalent of a year‟s salary, less the amount that she was given at termination of employment, as compensation for her patrimonial loss.

Case references

Christian v Colliers Properties (2005) 5 BLLR 479 (LC)

    Mashava v Cuzen & Woods Attorneys (2006) 6 BLLR 691(LC)

    Ntsabo v Real Security CC (2004) 1 BLLR 58 (LC)

    President of the Republic of South Africa & Another v Hugo 1997 (6) BCLR 708 (CC)

Labour Court: JR251/06

    Cell C (Pty) Ltd v Finger & Others

    Perception of racial bias Commissioner asked to recuse himself.

This was an application to have the commissioner‟s decision to recuse himself set aside. The applicant also sought a punitive cost

    order against the respondent.

    The employee had, at arbitration, asked for the commissioner‟s recusal. His reasons were that he perceived the situation as being “racially imbalanced” against him because the commissioner and the employer‟s representative were Indians. The commissioner

    reluctantly recused himself and ordered a punitive cost order against the employee.

Noted: That according to law, a decision by a presiding officer not to recuse himself is appelable. However, the converse will seldom

    apply, and then only when the review relates to unterminated proceedings where grave injustice might result or where justice might

    not by other means be attained.

Also noted: That to force an arbitrator who has recused himself from a matter, to continue with it, particularly in a case such as this,

    where the arbitrator was provoked into recusing himself, would be imprudent.

Held: That although the commissioner should not have recused himself, it would be inappropriate to set aside his decision. It was

    also held that the commissioner could have deprived the employee of a remedy until he has apologised and/or retracted his

    allegations. No costs order was made. The application was dismissed.

Case references

S v Collier 1995 (2) SACR 648

    Newell v Cronje & Another 1985 (4) SA 692 (E)

    Wahlhaus & Others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD)

    S v Suliman 1969 (2) SA 385 (AD)

    Soller v Soller 2001 (1) SA 570 (C)

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Labour Court: JR782/05

    Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others

    Commissioner applying criminal law standards when assessing substantive and procedural fairness of dismissal.

    The employee was dismissed after the employer had discovered that she was implicated in theft. At arbitration, the employer relied on videotape, which revealed another employee committing theft in the employee‟s presence. The commissioner made the following findings:

? That the video footage did not conclusively prove the employee‟s involvement because her face could not be seen and her

    movements did not necessarily indicate involvement,

    ? That since the bag had been returned, the conclusion could not be drawn that theft had actually occurred, and

    ? That the dismissal was procedurally unfair and ordered reinstatement.

Held: That while purporting to apply the balance of probabilities test, the commissioner had applied the test of proof beyond

    reasonable doubt. That was in itself a ground for review.

As to the of procedural challenge

Noted: That while the LRA is silent on the content of the notion of procedural unfairness. The nature and extent of that right is

    spelled out in the Code of Good Practice on dismissals. The rules introduced by the Code are based on the idea that true justice for workers lies in a procedure for expeditious and independent review of the employer‟s decision. The Court also noted that informal disciplinary procedures in the workplace balance the interests of employees and employers.

Held: That there was no legal basis for a test for bias to be drawn from the criminal justice model, which the commissioner had

    applied. That constituted a material error of law which was a further ground for a review. The award was set aside and remitted to the CCMA to be heard by another commissioner.

Case references

Foschini Group (Pty) Ltd v CCMA & Others (2002) 7 BLLR 619 (LC)

    Hira & Another v Booysen & Another 1992 (4) SA 69 (AD)

    Markhams (a Division of Foschini Retail Group (Pty) Ltd) v Matji NO & Others (2003) 11 BLLR 1145 (LC)

    MEC, Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2005) 2 BLLR 173 (SCA)

    Mlaba v Masonite (Africa) Ltd & Others (1998) 3 BLLR 291 (LC)

    National Commissioner of the SA Police Service v Potterill NO & Others (2003) 24 ILJ 1984 (LC)

    NEHAWU v University of Cape Town & Others 2003 (2) BCLR 154 (CC)

    NUMSA & Others v Bader Bop (Pty) Ltd & Another (2003) 2 BLLR 103 (CC)

    OK Bazaars (a Division of Shoprite Checkers) v Commission for Conciliation, Mediation & Arbitration & Others (2000) 21 ILJ 1188 (LC)

    Potgietersrus Platinum Ltd v Commission for Conciliation Mediation & Arbitration & Others (1999) JOL 5246 (LC)

    Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others (2003) 7 BLLR 676 (LAC)

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    By Dorothy Khosa

    Metal & Engineering Industries Bargaining Council, General Public Service Sectoral Bargaining Council: PSGA Johannesburg: MEGA10722 815-05/06 Greyling v IDC CC: Commissioner Gunase PSA obo Edwards v Department of Education: Constructive dismissal Employee resigned and raised litany Commissioner Goldman of complaints Constructive dismissal not proved Employee Payments and benefits Employee promoted - Employer’s

    failed to raise issues with employer before resigning. refusal to adjust employee’s salary – Unfair.

    The applicant had raised several complaints about her The applicant applied for a higher post which had been conditions of employment. She, subsequently, resigned and advertised at level 8. After the interview, she was appointed to claimed that the removal of her company vehicle was the final the post, but for more than two years she continued to be straw. She alleged that she had been constructively dismissed. remunerated at a level 7 salary. She contended that that

     constituted an unfair labour practice, and sought compensation. Held: After analysing the applicant‟s complaints, the arbitrator The respondent claimed that it had intended to appoint only held that most were without substance. The applicant‟s mere grade 8 employees to the posts in question, and that it was unhappiness about the manner in which she had been treated entitled to pay the applicant at her previous grade until the post was insufficient to prove a claim of constructive dismissal. in which she then served was re-graded to level 8. The Objectively viewed, the respondent‟s conduct had not been respondent claimed that that had ultimately been done. calculated to drive the applicant away. Furthermore, the applicant had failed to raise most of the issues with Noted: That the six posts concerned had been advertised as management before she resigned. The application was being on salary level 8. The core principle in the regulatory dismissed. framework created by the Public Service Act 103 (P) of 1994,

     was equal pay for equal work. Case references

     Held: That, of the six appointees, the applicant alone had been Amalgamated Beverage Industries v Jonker (1993) ILJ 1232 paid on grade 7 until her post was re-graded. That constituted (LAC) an unfair labour practice. The respondent was ordered to pay Jooste v Transnet Ltd t/a SAA (1995) 16 ILJ 629 (LAC) the applicant the difference between the amount she received Lubbe v ABSA Bank Bpk (1998) 12 BLLR 1224 (LAC) and the one she should have received had she been Mafomane v Rustenburg Platinum Mines Ltd (2003) 10 BLLR remunerated on the higher grade. 999 (LC) Milady’s, A Division of Mr Price Group Ltd v Naidoo & Others Dispute Resolution Centre, Western & Eastern Cape: MICT (2002) 9 BLLR 808 (LAC) 1152 Pretoria Society for the Care of the Retarded v Loots (1997) 18 Marks v L & Z Auto Centre: Arbitrator Christie ILJ 981 (LAC) Dismissal Employee received retrenchment pay Afterwards

    Quince Products CC v Pillay (1997) 12 BLLR 1547 (LAC) employee claimed unfair dismissal for misconduct Employee

    Riverview Manor (Pty) Ltd v CCMA & Others (2004) 2 BLLR to restore severance pay for misconduct case to be heard. 177 (LC) Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & Others The respondent had advised the applicant of a possible (1998) 19 ILJ 1240 (LC) dismissal for operational requirements. Consultation meetings Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 3 were held between the parties but they could not reach BLLR 344 (LC) consensus. The respondent offered the applicant alternative Van der Riet v Leisurenet t/a Health & Racquet Clubs (1998) 5 employment which he denied. The respondent paid out the BLLR 471 (LAC) retrenchment pay to the applicant. After receiving the

     retrenchment pay, the applicant claimed that he had been

     unfairly dismissed for misconduct. The respondent denied the


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    Noted: That the applicant was not entitled to retrenchment pay incumbent in a post when it was upgraded. Two judges held because he had refused reasonable alternative employment. that the appeal should fail and that the word „may‟ should be

     given its ordinary permissive meaning. Held: That the applicant should restore the severance pay that the respondent had paid him, if he wished to pursue his claim Held: That the Commissioner did have a discretion whether to for an alleged dismissal based on misconduct. advertise or not, but could not exercise that discretion in a

     manner which could lead to the redundancy of a satisfactory Constitutional Court: CCT 68/05 incumbent. Accordingly, the regulation had to be read in a way South African Police Service v Public Servants that neither produced the rigidity of outcome that would flow Association: Judges Sachs & Yacoob from the view of the majority in the SCA, nor carried the risk of Interpretation and application Employing incumbent consequent redundancy implicit in the minority approach. employee in higher post without advertising. Accordingly, the provision should be read to permit the

     Commissioner not to advertise a newly re-graded post, despite This was an application for leave to appeal to the Court against the general obligation requiring that all vacant posts should be a decision given in the Supreme Court of Appeal (SCA). The advertised, in circumstances where an incumbent of a post has issue concerned the interpretation to be given to the word „maybeen satisfactorily performing the tasks attached to it. Where in regulation 24(6) of the Regulations for the South African there is such an incumbent, the Commissioner is obliged to Police Service (SAPS). appoint the incumbent to the newly re-graded post on the

     minimum salary range attached to the new post. Noted: That the regulation provides that:

     Case references If the National Commissioner raises the salary of a post, she or he may continue to employ the incumbent employee in the Bernstein & Others v Bester NO & Others NNO 1996 (2) SA higher-graded post without advertising the post if the incumbent 751 (CC) Bhana v Dönges, NO & Another 1950 (4) SA 653 (A)

     Investigating Directorate: Serious Economic Offences & Others (a) Already performs the duties of the post; v Hyundai Motor Distributors (Pty) Ltd & Others 2001 (1) SA (b) Has received a satisfactory rating in her or his most recent 545 (CC) performance assessment; and Nel v Le Roux NO & Others 1996 (3) SA 562 (CC) (c) Starts employment at the minimum notch of the higher Port Elizabeth Municipality v Various Occupiers 2005 (1) SA salary range.” 217 (CC)

     South African Railways & Harbours v New Silverton Estate, Ltd The High Court held that the use of the word „may‟ in regulation 1946 AD 830. 24(6) was unambiguous and should be given its ordinary Schwartz v Schwartz 1984 (4) SA 467 (A) permissive meaning. A declaratory order was, accordingly, The National Commissioner of the South African Police Service issued to the effect that regulation 24(6) vests in the National v The South African Police Union & Others (TPD) Case No Commissioner a discretion either to advertise the post or 28812/02, 31 October 2003, as yet unreported continue to employ the incumbent employee in the upgraded The Public Servants Association v National Commissioner of post. The Public Servants Association then appealed to the the South African Police Service SCA 573/04, 25 November SCA. Three SCA judges held that interpreting the regulation 2005, as yet unreported consistently with the right to fair labour practice and the right Van Rooyen & Others v The State & Others 2002 (5) SA 246 not to be unfairly dismissed required the retention of the (CC)

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     By Dorothy Khosa

    Introduction argued that if proficiency in Afrikaans was a key requirement for

     the post that should have been clearly set out in the The Constitution Act 108 of 1996 is the supreme law of the advertisement. To avoid disruptions, at the school in question, Republic of South Africa. One of the obligations that it imposes an agreement was reached that the applicant should be is that of employees‟ right not to be unfairly discriminated appointed to a level of principal within the metropolitan area in against. This obligation is also imposed in labour legislation, question. The first respondent was ordered to pay the costs of amongst others, the Employment Equity Act 55 of 1998 (EEA) the applicant. and the Labour Relations Act 66 of 1995. According to labour legislation, there are different forms of discrimination that are Employees are sometimes refused promotions because of the regarded to be unfair. The focus of the article is on unfair employment equity targets that have been set in an discrimination based on race. Either party involved in the organisation. The EEA indicates that it is not unfair employment relationship can translate such form of unfair discrimination for an employer to take affirmative action discrimination to biasness. measures consistent with its purpose. In the case of Baxter v

     National Commissioner, Correctional Services & Another (2006) Unfair discrimination based on race 9 BLLR 844 (LC), the respondent claimed that it did not appoint

     the applicant to the position because of its employment equity It is surprising to realise that racial discrimination in South Africa targets. In this case the applicant, a Coloured male, was still surface in employment relationships even though it is recommended for appointment to a position. However, the prohibited by legislation. One would not expect such actions in recommendation was turned down on the basis that it did not this era, but the reality is that it still persists. There are advance the respondent‟s employment equity objectives. The situations in which employees, in applying for posts, are made position was re-advertised and an African male was appointed. to suffer racial prejudice. The case of Stokwe v MEC, The successful candidate was subsequently transferred to Department of Education, Eastern Cape Province & Another another post, and another officer transferred to the post in (2005) 14 (LC) addressed this issue. In this case, the applicant question. In querying the appointment, the applicant was applied for a promotional post of principal and she was informed that his appointment would not have addressed the interviewed. In the interview, the applicant obtained equal respondent‟s equity targets. The applicant contended that he scores with the appointee. The panel then considered other was unfairly discriminated because, had he been appointed, he relevant factors in determining the appointment. Eventually, the would have been the only coloured in that level in the province applicant became the best candidate. Her promotion was then concerned. Black males and a female filled the other posts. The recommended to the school governing body. After perusing the applicant established a prima facie case of discrimination based

    recommendations, the governing body indicated that the on gender and race. The LC held that the reasons given by the candidate who was second best should be appointed to the respondents for not appointing the applicant contradicted the position. The governing body‟s reasons were not clear, but it recommendations of the selection committee. The evidence was indicated that the applicant was not fluent in Afrikaans. was, therefore, sufficient to prove that the decision not to

     appoint the applicant was based on unfair discrimination. The The Department of Education established an independent LC ordered the respondents to ensure that the applicant review panel to consider the final recommendation made by the received the salary and benefits to which he would have been school governing body. The panel insisted that the interview be entitled had he been appointed to the post, with interest. conducted in Afrikaans, but the applicant refused. The panel indicated that the applicant should not have applied for the Allegations of bias position if she was not in a position to communicate in Afrikaans because that was the medium of instruction at the school. The Wikipedia, encyclopaedia, defines the word bias as a Eventually the interviewing panel decided in favour of the other prejudice in a general or specific sense, usually in the sense applicant, the appointee. The Labour Court (LC) found that the for having a preference to one particular point of view or issue of language arose at the school governing body meeting ideological perspective. However, one is generally only said to when it realised that a black woman was to be appointed. The be biased if one’s powers of judgment are influenced by the governing body had assumed that a black woman would not be biases one hold, to the extent that one’s views could not be proficient in Afrikaans. That, according to the LC, amounted to taken as being neutral or objective, but instead as subjective”.

    racial stereotyping. That manifested bias and prejudice on the part of the school governing body. The applicant was unfairly Different forms of unfair discrimination could result into discriminated against on the basis of race. Mischke (2006 (a)) biasness. For instance, the article has discussed cases

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    whereby employers‟ biasness had resulted in non-appointment Discrimination is not always unfair according to legislation of the of candidates in promotional positions. Biasness can also country. It becomes unfair if certain practices are performed become an issue in disciplinary enquiries. Mischke (2006 (b)) outside the parameters of laws of the country. For example, the argues that allegations of bias usually arise because a EEA states that an appointment of a person that conforms to chairperson is seen as having a vested interest in the outcome the requirements of equity targets of the employer cannot be of a case or if he or she has been involved, in some way or regarded as being unfair provided there is evidence of such a another, in the investigation of the disciplinary charges and claim. Legislation list certain grounds that are regarded as events. “The rule against bias emanates from administrative law, unfair discrimination, for example, an employer cannot refuse to which requires that an officer presiding at a disciplinary hearing promote a person because of his or her race. must not only be impartial in fact, but also that there should be no grounds for even suspecting that his or her decision might The article also discussed the issue of biasness as a result of be shaped by extraneous factors...”. That does not mean that a one‟s race. It focuses mainly on biasness that prevails during manager of a company, chairing a disciplinary hearing, would disciplinary enquiries. An employee may request a presiding not be able to decide on guilt and sanction objectively. This officer to recuse himself or herself if there are reasons to doubt issue seemed to be relevant to an arbitration case that was held his or her impartially. Employees sometimes doubt the at the Commission for Conciliation, Mediation and Arbitration impartiality of a presiding officer because they would like to (CCMA), thereafter, referred to the LC. The case was between have someone of their choice to preside over their case. Cell C (Pty) Ltd v Finger & Others (2006) 10 BLLR 919 (LC). In Unfortunately that is not possible in statutory arbitration, like this case, the applicant, a black man, objected to the arbitrator those held at the CCMA. on the basis of race. The arbitrator was Indian. The respondent‟s two representatives were also Indian. The Case references applicant alleged that the situation was racially imbalanced against him. The arbitrator recused himself, and the respondent Cell C (Pty) Ltd v Finger & Others (2006) 10 BLLR 919 (LC).

    referred the issue to the LC for review. The LC ruled that an Stokwe v MEC, Department of Education, Eastern Cape objection to one‟s race could never be a reason for a presiding Province & Another (2005) 14 (LC) officer to recuse himself or herself. An objection on such Baxter v National Commissioner, Correctional Services & grounds would make litigation in a multi-racial country Another (2006) 9 BLLR 844 (LC)

    impossible. At the time the LC heard the matter, the case had been postponed by the CCMA and it was to be heard by References another commissioner.

     Grogan, J. Workplace Law, 7th Ed. Juta Law: Lansdowne. The case of Marley FloorWorx v MEWUSA (2005) 14 MEIBC is Mischke, C. 2006(a). “Race discrimination is alive and well”. similar to the Cell C one, except that the arbitrator refused to IRNETWORK. Accessed in December recuse himself. In the Marley case, an application for recusal 2006. was made because of a perceived bias on the part of the Mischke, C. 2006(b). Bias and race”. IRNETWORK. bargaining council arbitrator against both the union and the Accessed in December 2006. employee. The arbitrator stated that one should not give in to Republic of South Africa. The Constitution, Act 108 of 1996. the unfounded and ill-informed fears of bias expressed by Government Printers: Pretoria. parties who either want a presiding officer of the choice to hear Republic of South Africa. The Employment Equity Act, 55 of the matter, or if the party concerned wants to bully the arbitrator 1998. Government Printers: Pretoria. into accepting a point of view. Republic of South Africa. The Labour Relations Act, 66 of 1995. Government Printers: Pretoria. Conclusion The Wikipedia. Encyclopaedia. Accessed in December 2006.

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