Dalais v Telkom SA (D644/08) [2011] ZALCD 30 (22 November 2011)

Dalais v Telkom SA (D644/08) [2011] ZALCD 30 (22 November 2011)

The court found that the respondent's exclusion of the applicant from shortlisting and interviewing for the branch manager position constituted discrimination, but that such discrimination was justified as fair under section 6(2)(a) of the Employment Equity Act because it was in accordance with the respondent's approved employment equity plan, which set national targets for female representation at the relevant occupational level. The plan did not require division-specific targets, and the application of the plan at the national level was logical and compliant with the Act. The applicant failed to establish that he would have been appointed even if interviewed. Furthermore, the...

Citation
[2011] ZALCD 30
Parties
Applicant: Perth Dalais; Respondent: Telkom S.A
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
22 November 2011
Case Number
D644/08
Procedural Posture
Review Application / Application for Condonation and Merits Determined on Stated Case
Outcome
Application for condonation dismissed; no order as to costs.
Judges
D H Gush
Legal Topics
Employment Equity Act, Unfair Discrimination, Affirmative Action, Condonation, Protected Promotion
Labour Law Civil Procedure Employment Equity Act Unfair Discrimination Affirmative Action Condonation Protected Promotion

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Perth Dalais

Applicant

Telkom S.A

Respondent

Procedural Posture

Review Application / Application for Condonation and Merits Determined on Stated Case

Legal Issues

  1. 1 Whether the respondent's exclusion of the applicant from shortlisting and interviewing for a position on the basis of gender constituted unfair discrimination.
  2. 2 Whether the respondent's employment equity plan justified the gender-based exclusion at a national occupational level rather than by division.
  3. 3 Whether the applicant's late referral of his statement of claim should be condoned given the degree of lateness.

Ratio Decidendi

The court found that the respondent's exclusion of the applicant from shortlisting and interviewing for the branch manager position constituted discrimination, but that such discrimination was justified as fair under section 6(2)(a) of the Employment Equity Act because it was in accordance with the respondent's approved employment equity plan, which set national targets for female representation at the relevant occupational level. The plan did not require division-specific targets, and the application of the plan at the national level was logical and compliant with the Act. The applicant failed to establish that he would have been appointed even if interviewed. Furthermore, the...

Court Disposition

Application for condonation dismissed; no order as to costs.

Orders

  • The applicant's application to condone the late referral of his statement of claim is dismissed with no order as to costs.