Ngcobo v Member of Executive Council: Department of Co-operative Governance and Traditional Affairs: Kwazulu-Natal and Another (D492/2020) [2023] ZALCD 14 (14 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D492/2020

Not Reportable

In the matter between: ISRAEL ZAMA NGCOBO Applicant and MEMBER OF EXECUTIVE COUNCIL: DEPARTMENT OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS: KWAZULU-NATAL First Respondent HEAD OF DEPARTMENT: DEPARTMENT OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS: KWAZULU-NATAL Second Respondent

Heard: 13 - 15 February and 3 - 5 May 2023

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 14h00 on 14 August 2023.

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1] The applicant alleged that he had been unfairly discriminated against on the basis of his age and / or his gender and / or an arbitrary ground by virtue of the respondents' failure or refusal to have appointed him to the post of Deputy Director: Water and Sanitation (the post) in 2018. As a result he instituted a claim in this court in terms of s6(1) of the Employment Equity Act, 1998 ('the EEA) in which he asked this court to appoint him retrospectively to the post, with effect from 1 July 2018, alternatively, that he be awarded compensation equivalent to the amount of 24 months' salary,

calculated on the basis of the current remuneration applicable to the post.

[2] The respondents have opposed the relief sought by the applicant. It is the respondents' case that no decision was taken in relation to the post, and nor can the respondents conduct in relation to the process in question be found to have constituted either a policy or practice. The applicant can accordingly not have been discriminated

against within the meaning of s6(1) of the EEA. To the extent that the first respondent had raised a number of queries and concerns

regarding the candidates, including the applicant, who had been recommended for appointment by the Selection Committee, it was

alleged that had been reasonable for her to do so in consideration of her obligations as the Executive Authority. The respondents asked that the applicant's claim be dismissed.

Documentary Evidence

[3] In support of their respective cases both parties relied, for the most part, on the documents which had been created in the course

of the recruitment process in question.

[4] During November 2016 the respondents published an advertisement in which they called for applicants to apply for the post of Deputy Director: Water and Sanitation within the Department's Sector Co-Ordination and Planning Directorate. The advertisement indicated that the minimum qualification required was a National Diploma or NQF level 6 in the field of Development / Built Environment, or a related qualification. Together with this, applicants were required to have at least 3 years junior management experience in the public sector or the municipal sector or the provision of water and sanitation. Key responsibilities were identified; entailing that the appointee would be required to facilitate basic municipal services, including, inter alia, the management of the resources of the sub-directorate, researching and developing water and sanitation strategies, and supporting the provision of Free Basic Water and Sanitation.

[5] The applicant believed that he was sufficiently well qualified to be considered for appointment and he duly made application. His

curriculum vitae demonstrates that not only does he hold a Masters Degree in Business Administration, but has completed a number of courses focused on the management, conservation and treatment of water, having been awarded certificates in the upgrading and optimization of water treatment plants, dam control, environmental management systems and implementation. In addition to his academic qualifications, his work history demonstrates that he has extensive experience in the field of water and sanitation.

[6] Together with six other candidates, the applicant was shortlisted to be interviewed. The outcome of the interview process which had been undertaken by the Department's Selection Committee resulted in the applicant having been the second highest point scorer

with the Selection Committee making the following recommendation,

'6. Recommendations (Summary)

In view of the discussions above, and with due regard to Employment Equity Targets, the Selection Committee unanimously agreed that the post of Deputy Director: Water and Sanitation be offered to Ms P Luswazi. This will boost the achievement of the Employment Equity goals as women are required at this level.

In the event of Ms Luswazi declining the post or should she leave the establishment within 6 months, the Committee agreed that the post then be offered to Mr IZ Ngcobo and in the event of him declining the position that it then be offered to Mr DD Rimmer. '

[7] This recommendation was premised on the Employment Equity goals of the Department, Ms Luswazi having been a member of the African female demographic which was then underrepresented in the Department at the salary level of the post in question, being salary level 12.

[8] A memorandum was prepared on 18 January 2018 in which the process which led to this recommendation was detailed and the first respondent's approval of the recommended candidate's appointment was sought.

[9] In accordance with the normal process followed, the memorandum was first given to the second respondent, Mr Thandolwakhe Tubane, for his consideration. By affixing his signature to the recommendation and having scored out the words, 'Not Supported', he evinced his approval of the Selection Committee's recommendation on 26 March 2018.

[10] The first respondent, Ms Nomusa Dube-Ncube, did not, however, concur. On 27 March 2018 she expressly indicated that the recommendation was not approved and noted thereunder,

'The person recommended does not have the necessary experience and exposure to issues of water and san. Your own advert says relevant knowledge on water and sanitation. Can these posts be filled urgently.'

[11] The Selection Committee duly reconvened to discuss and address the first respondent's comments and decision. The minute of the reconvened meeting reflects that the decision which was then taken by the Selection Committee to recommend the applicant for appointment to the post had been preceded by a discussion in which the options available to the committee were considered and the factors which informed their ultimate decision were discussed,

'4. DISCUSSION

In dealing with MEG concerns as mentioned in the background above, Mr Evetts informed the selection committee that there were two options. Firstly, one would be to re-look at the second as well as the 3rd recommended candidates for appointment to this post to determine in terms of their experience and exposure to the functions of the Deputy Director post, whether they meet the comments that were raised by the Executive Authority. It was also noted that both candidates were successful during the interview process and scored higher than Ms Luswazi, who was recommended for the appointment to this post in order to address employment equity. The 2nd option was to re-advertise the post. It was also noted that in terms of the work profile for this level African males and females still need to be appointed in order

to balance the demographics. It was also noted that the Executive Authority has requested that this post should be filled urgently.

The selection committee re-looked at the advert to check whether it was still relevant to the functions of the post in terms of the new proposed structure. It was agreed that it was still relevant and therefore it would be ideal to re-look at the other recommended candidates to confirm whether they have the necessary

experience and exposure to issues of water and sanitation as commented by the Executive Authority.

The selection committee re-looked at the CV's and also discussed the performance of the 2'1d and 3'° preferred candidates during the interview process. It was agreed that these candidates did well in the interview process and they have extensive experience as well as exposure to issues of water and sanitation. In view of the above, the selection committee agreed that the candidates should be recommended accordingly:'

[12] The recommendation of the Selection Committee was captured as follows,

'In light of the above, and with due regard to employment equity targets, the selection committee unanimously agreed and resolved that the post of Deputy Director: Water and Sanitation be offered to Mr I Z Ngcobo. This will also boost the achievement of the employment equity goals as African males are still required at this level.

In the event of Mr I Z Ngcobo declining the post or should he leave the establishment within 6 months, the committee agreed that the post will then be offered to Mr DD Rimmer, and in the event he declines the post, then the post will be re-advertised.'

[13] The recommendation was once again placed before the first and second respondents for their consideration by way of a further memorandum authored by the Chief Director: Human Resource Management and Development dated 7 May 2018. Although the second respondent indicated his support of the recommendation, the first respondent did not. Without scoring out any of the options available for her selection, 'Approved / Not Approved / Varied', the first respondent wrote the following note,

'Thank you for an honest response. I am very concerned that this should have been picked up administratively. I agree that we need female candidates as this is a legal and moral obligation. My concern is the age of the remaining candidates. In relation to renewal, skills building of the Department. '

[14] Mr Langa Nyilenda, an HR Official in the employ of the Department,

informed the applicant telephonically that he was the successful candidate and that a written offer of employment would be available

for him shortly. As a result of having been so informed, the applicant tendered his resignation from his then employer with effect

from 30 June 2018 with a view to commencing employment with the Department on 1 July 2018.

[15] An undated offer of employment addressed to the applicant was prepared and submitted to the second respondent for his signature. The second respondent, however, refused to sign the letter of employment, having raised the following query on 4 June 2018,

'Kindly provide a reason on why the MEC's comments in the submission were not taken into account. HR to please advise accordingly.'

[16] Mr Nyilenda addressed an email to the second respondent in which he sought to explain the circumstances in which the letter of appointment had been prepared. Although Mr Nyilenda did not testify at the trial of this matter, the explanation then set out in his email was as follows,

'Dear HOD

Please note the comments that were made by the MEG in terms of this post have been taken into account by HR.

The relevant Business unit of which the appointed candidate will be placed will be advised accordingly in terms of the issue of skills building of the department in order to prioritize and address it as soon as the appointed candidate assumes his duties.

With regard to the first part of the comments which deals with the appointment of females, HR will ensure that the (sic) any future appointment will focus on recommending females for the appointment in the selection process especially at this level.

However, one cannot be discriminated on the basis of their age. Furthermore young people are more likely to live (sic) the service than older people.

The previous incumbent of this post who was born in 1977 left the department after working for the department for 3 years and 10 months. She was appointed on the 1st of January 2013 and resigned with effect from the 14th of October 2016.

HR was also under the impression that the MEC had approved the appointment of Mr IZ Ngcobo as the submission was not, not approved. Consequently, Mr IZ Ngcobo has already been advised verbally in order to fast track the process of appointment, so that he could serve his notice to his current employer. HR was also under impression that the concerns that were made by the MEC was to be addressed as indicated on paragraph 1 and 2 above of this Emails (sic).

Sakhile, I have attached the said submission for your attention, please confirm whether the appointment has been made.'

[17] This response was transmitted to the first respondent under cover of a memorandum, also dated 6 June 2018, together with the recommendation dated 7 May 2018 which had previously been transmitted to her. In the memorandum the first respondent was requested to confirm if she had approved the appointment, and whether the HR Department could continue therewith.

[18] On 12 June 2018 the HR Department addressed a further memorandum to the first respondent under cover of whiGh both previous submissions, in which firstly Ms Luswazi and thereafter the applicant had been

recommended for appointment, were again provided to her. In that memorandum the first respondent was requested to advise whether she approved or declined the appointment, as it was unclear. She was also requested to advise regarding the way forward.

[19] The first respondent's response, reflected on the memorandum itself, was stated in the following terms,

'Where is the original sleeve. My second question of age is not answered. Can the HOM deal with this and bring it back before 15/06/2018. The HOD's attention should also be drawn to this. '

[20] A third and final

submission was prepared by the HR Department in response to the queries then raised. In that submission dated 14 June 2018 the HR Department summarised the history of the appointment process and endeavoured to allay the first respondent's concerns. In addition to restating that which had previously been stated by Mr Nyilenda in relation to age, this final submission included the following

statements,

'Chapter II 6(1) of the Employment Equity Act, 1998 stated the following in terms of prohibition of unfair discrimination in the workplace-

6(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.

In view of the above, the recommended candidate, Mr Ngcobo is 54 years old and he still has about 11 years before he retires. However as stated in the Act above, one cannot be discriminated on the basis of their age. '

[21] The second respondent received the submission and scored out both the

options which were available to him, 'Approved' and 'Not Approved'. His hand written note of 15 June 2018 reflected his disquiet

regarding the appointment process,

'It was improper for the HR official to advise Mr Ngcobo about the unapproved appointment as there was no letter of appointment. The MEG is still to decide on the appointment. '

[22] When the first respondent considered the submission thereafter she scored out the word, 'Approved', leaving the words, 'Not Approved' and 'Varied' intact. The only note then made by her constituted the

single sentence,

'I would find this very inappropriate. '

[23) The applicant, in the meantime, had not been advised that any complexities had arisen within the Department concerning that which he had been given to believe by Mr Nyilenda; that his appointment to the post had been approved. Having expected to commence employment with the Department on 1 July 2018, and not then having received a letter of appointment, on 10 July 2018 he addressed a letter to Mr Dlamini, the Department's Chief Director: Human Resources, in which he pointed out that he had not received his letter of appointment and enquired as to when he could expect to assume his duties.

[24] A reply was addressed to him on 24 July 2018 in which he was informed that the filling of the post had not yet been concluded and that no candidate had been approved for appointment.

[25] The Department ultimately did not make an appointment from the pool of candidates who had applied to be considered for the post. The vacancy was re­ advertised and filled in October 2021 pursuant to a further recruitment process in which the applicant did not participate.

Oral Evidence

[26] The applicant assumed the duty to begin and testified in support of his own case, with reference to the documentation relating to the appointment process in question, which he asserted demonstrated that the first respondent had not appointed him as a result of either or both his age and gender.

[27] His evidence established that he had been shortlisted and interviewed for the post. During May 2018 he was informed by Mr Nyilenda that he had been successful and who then enquired when he could take up the position. Due to his having been required to have completed a handover of his work with his erstwhile employer he advised Mr Nyilenda that he would be able to take up the position at the beginning of July 2018. He then tendered his resignation from his employment.

[28] After he had provided the respondents' HR Officials with certain

documentation which they had requested for validation purposes, he awaited further communications from the Department. When, by the end of June 2018, he had heard nothing further, he contacted Mr Nyilenda who advised him to contact Ms Fenner, another employee in the HR Department. She, in turn, informed him that there were some issues with senior management 'about his letter' and that he should wait another week.

[29] After a further week had passed and he had not yet heard from the Department, he addressed a letter to the respondent's Chief Director: Human Resources, in which he enquired as to the status of the recruitment process. The response directed to him was that detailed in paragraph [24], in which he was advised that the filling of the post had not been finalised, as well as drawing his attention to the fact that Mr Nyilenda was not authorised to have advised him that he had been successful in his application.

[30] Acting on the legal advice of his former legal representative, the applicant pursued an unfair dismissal dispute which he eventually withdrew in August 2019.

[31] On 19 November 2019 he applied for the disclosure of information from the Department in terms of the Prevention of Access to Information Act, 2000 (PAIA). The respondents initially refused to disclose the documents he had sought however, pursuant to a process of appeal, the respondents provided him with more documentation that he had asked for.

[32] It was the applicant's belief that he had been discriminated against when he was not appointed to the post.

[33] The respondents called two witnesses, Ms Clarissa Fenner and the second respondent. Both witnesses' evidence related to the circumstances which had surrounded the applicant's non-appointment, as well as their own respective beliefs concerning that which the first respondent had intended to convey when she made the various notations on the documentation, as set out before.

[34] Ms Fenner testified that she had been employed by the Department

since approximately 2017 or 2018 until she retired in 2022. In the course of her career which spanned more than thirty years she had been involved in various Human Resources Functions. The position held by her at the time of her retirement had been Recruitment and Selection Officer under the Directorate: HR Admin.

[35] Ms Fenner provided evidence of the circumstances in which the post

had been advertised and the processes followed in terms of which the recommendation of the applicant had resulted. She confirmed that the first respondent did not approve the appointment of the first candidate who had been recommended for appointment by the Selection Committee, Ms Luswazi for the reasons set out on that particular recommendation.

[36] Because the first respondent had not approved the recommendation the selection panel considered if someone else from the pool of possible candidates could be selected. If this had not been possible, the post would have had to have been re-advertised. She was not herself present at the meeting, having been away from work at that time. The outcome of the meeting of the Selection Committee was the recommendation that the applicant be appointed. Mr Nyilenda, who had been present at the meeting as the representative of Human Resources, prepared the follow up submission dated 7 May 2018 in which the first respondent was requested to approve the recommendation that the applicant be appointed.

[37] The significance of the first respondent not having selected any one of the options available to her, 'Approved/Not Approved/Varied', was that she still had a query. The comments made by the first respondent

on the follow up submission as were detailed before communicated to Ms Fenner that the first respondent required female candidates as the Department's equity targets were females, as well as the need for renewal and skills building. The first respondent's comments

indicated to her that she was not comfortable signing the recommendation where issues had not been addressed.

[38] She testified further that Mr Nyilende ought not to have understood

from the first respondent's response that the applicant had been considered to have been the successful candidate. Notwithstanding

this, he had laboured under such an impression, the result of which was that a draft letter of appointment was prepared in favour of the applicant.

[39] The further follow up submission to the first respondent had also been prepared by Mr Nyilenda after the second respondent had returned the draft appointment letter, having stated that the first respondent

had not approved the appointment and that he therefore could not sign the appointment letter. In that follow up submission Mr Nyilenda

indicated that the shortage of females would be dealt with on the next occasion, and that there remained a shortage of African males. Ms Fenner's opinion was that Mr Nyilenda's approach had then been unsatisfactory as the first respondent had been focussed on the demographics relevant to the post at that stage, not at a point in the future.

[40] When the final follow up submission was placed before the second respondent he did not endorse the recommendation as he had been unhappy with what the Human Resources Department had done.

[41] When called upon to provide her interpretation of the first respondent's comment, 'I would find this very inappropriate' at the end of the final follow up submission Ms Fenner testified that she understood that the first respondent was not approving what the Human Resources Official had done and was not accepting his explanation throughout the submission.

[42] Ms Fenner testified further that Mr Nyilende's conduct in having advised the applicant that he had been successful when a decision had not been made to this effect resulted in there having been irregularities in the process as he had acted in breach of the obligations of confidentiality imposed on him in terms of clause 7.2(d) of the Department's Provincial Policy Framework on Recruitment and Selection. It was her evidence that where a breach of confidentiality occurs, the usual consequence is that the post should be re-advertised because there are flaws and irregularities in the process.

[43] In this matter, the post was re-advertised after the Human Resources

Department had prepared a motivation for the re-advertisement thereof on 10 December 2019. The subsequent re-advertisement processes led to an appointment in November 2021.

[44] The second respondent testified that as the Head of Department he is the Department's accounting officer. As such, he is responsible for the management of the entire Department, including its Human

Resources function. The first respondent is the functionary responsible for taking the decision to appoint individuals at the level of Deputy Director, being the level of the post.

[45] Any recommendation for appointment would, however, be considered by himself before it is given to the first respondent for her consideration as it is his responsibility to ensure that the correct processes had been followed. In the event that an irregularity were to have occurred, it would be his responsibility to draw it to the first respondent's attention, and to provide her with direction as to how to deal with the issue.

[46] The second respondent understood the first respondent's comments in relation to the first recommendation made in favour of the applicant's appointment to have been that she was not in favour of the recommendation and that her issues related to the age and gender of the recommended candidate, but that she had not, at that stage, made any decision.

[47] Despite the fact that no decision had been taken, Mr Nyilenda contacted the applicant and advised him that he had been the successful candidate. It was both irregular and improper for him to have done so, as his actions undermined the authority of the first respondent.

[48] When the final submission relating to the applicant had come before him for his attention he noted thereon that the first respondent was yet to decide on the issue and noted that it had been improper for

the HR official to have advised the applicant otherwise. He crossed out both the words, 'Supported' and 'Not Supported' where provision

was made for him to make an election as he neither supported nor did not support the decision, but wished to appraise the first respondent of the facts to allow her to make her own decision.

[49] His understanding of the first respondent's comments was that she did

not approve the appointment. He inferred from her use of the words, '/ would find this very inappropriate' to have been with reference to the improper conduct of the HR Officer.

Analysis

[50] Section 11 of the EEA legislates where the burden of proof lies in cases of alleged discrimination,

'(1) If unfair discrimination is alleged on a ground listed in s6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination –

(a) did not take place as alleged; or

(b) is rational and not unfair, or is otherwise justifiable.'

[51] It has been accepted that notwithstanding the wording of s11(1), something more than a mere allegation that an employer has perpetuated an act of discrimination is required,

'Section 11(1), like its predecessor, states that the respondent employer must disprove the unfair discrimination 'alleged' by an employee in order to avoid liability. The term 'alleged' has not been consistently interpreted by the courts. ft must be presumed to mean something less than making out a prima facie case, as would be required in the ordinary course with the burden of proof is not reversed. However, the weight of authority indicates that it means more than an unsupported contention or mere accusation. At the very least, as in the case of automatically unfair dismissal, it is suggested that the employee must produce 'sufficient evidence to cast doubt on the reason' put forward by the employer for its action; that is to say, If the employee succeeds in discharging this evidential burden, '[i]t then behoves the employer to prove the contrary'. '[3]

[52] It was the applicant's pleaded case that the first respondent failed

and/ or refused to appoint him on the basis of his age, and / or his gender, and / or on the basis of an arbitrary ground. By having

failed or refused to have approved the Selection Committee's recommendation that he be appointed to the post, the first respondent

discriminated unfairly against him. The issue of unfair discrimination on an arbitrary ground was not persisted with by the applicant in the course of his evidence or in argument presented on his behalf and there is according.ly no need to give any further consideration to this issue.

[53] Upon the conclusion of the applicant's evidence he had produced evidence sufficient to establish his prima facie case and the evidentiary burden accordingly shifted to the respondents to prove, on a balance of probabilities, that the decision not to appoint the applicant was not for reasons relating to his age or his gender, or if it was for such a reason, that such decision had nonetheless been fair.

[54] It was the respondents' case that, to found an action based on s6 of the EEA, the applicant was required to establish the following:

'2.1 There must be an act or conduct (including the formulation of policy) committed by a person,

2.2 Such act or conduct must occur within an employment policy or practice (as defined in section 1 of the EEA),

2.3 The act or conduct must cause unfair discrimination, directly or indirectly.'

[55] The initial premise upon which the respondents' defence was based was

that no decision had been taken by the first respondent. It was their pleaded case that in having responded as she had done on 21 May 2018 the first respondent took no decision, and merely requested the Selection Committee to consider the matters that she had raised; the Department's obligation in terms of the EEA to recruit suitably qualified African females as well as the Department's operational requirements in relation to the employment of what it termed 'elderly recruits'. As no appointment was ultimately made as a result of the recruitment process in which the applicant had participated, no actual decision was taken in relation to the applicant, with the result that there could have been no act of discrimination. Further to this, the respondents have argued that the conduct of the first respondent did not constitute a practice or policy within the meaning of the EEA.

[56] The first determination which is required to be made is whether the first respondent took a decision not to appoint the applicant. If so found, it must be determined whether such decision constituted a policy or practice. Only if these two issues are found in the applicant's favour will it be necessary to determine whether such conduct constituted unfair discrimination vis a vis the applicant.

[57] The evidence introduced during the course of the trial demonstrated

unequivocally that the Selection Committee's recommendation that the applicant be appointed to the post was placed before the first

respondent on at least four separate occasions for her consideration.

[58] In consideration of the recommendation when presented to her in May 2018, her comments, inter alia, included those applicable to both the applicant and the other possible appointee, Mr Rimmer, relating to their respective ages. The first respondent did not then approve the applicant's appointment to the post.

[59] There is no evidence before me which indicates what, exactly, the first respondent's response had been when the recommendation was placed before her for the second time, on 6 June 2018, but it is clear that whatever her response may have been, it necessitated that the recommendation be placed before her for her to consider on a

third occasion.

[60] When she gave consideration to the recommendation on the third occasion, which must have occurred on either 12 or 13 June 2018, she then remarked that her .question concerning age had not then been answered. The first respondent again did not approve the applicant's appointment to the post.

[61] On 15 June 2018, being the last occasion on which the first respondent considered the recommendation that the applicant be appointed to the position she scored out the word, 'Approved' and remarked only that she would find 'this' very inappropriate.

[62] It is impossible not to conclude that the conduct of the first respondent on the first three occasions when she considered the recommendation that the applicant be appointed, and did not then

appoint him, not to have constituted a failure to appoint the applicant, as was his pleaded complaint. It is equally difficult to conclude that the positive act of electing not to approve the applicant's appointment on the final occasion when she had been

afforded the opportunity of endorsing the recommendation that he be appointed to the post constitutes anything other than a refusal to appoint him, as too was his pleaded complaint.

[63] Whether by having elected not to appoint him, and thereby failing to have done so, or by having expressly elected not to approve his appointment on the basis of the recommendation made by the Selection

Committee, and thereby refusing to do so, the first respondent made a number of conscious decisions. Those conscious decisions led to the applicant not having been appointed and it is accordingly of no consequence that no-one else was appointed in his stead. The only reason that the applicant was not appointed to the post was because the first respondent initially failed to approve his appointment and thereafter refused to do so, thereby bringing the recruitment process which had led to his having been recommended for appointment to an end.

[64] The second issue is whether the act or conduct as aforesaid may be found to constitute a policy or practice, as reflected in s6(1) of the EEA which provides as follows,

'Prohibition of unfair discrimination

No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more listed 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, birth or on any other arbitrary ground.'

[65] Whilst it may be tempting to give the expression 'employment policy or practice' a meaning which would limit its application to something which is officially documented or accepted as being the practice to be adhered to in a specific workplace, the definition itself negates such a limited construction. The phrase, 'employment policy or practice' is defined to include but not be limited to recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, disciplinary measures other than dismissal, and dismissal.

[66] As the term is defined to include 'appointments' as distinct from the processes which precede them, and there is no bar on individuals claiming that they have been discriminated against by virtue the conduct of individuals who act on behalf of their employers (who are in all events vicariously liable for the acts of discrimination perpetrated by their employees in terms of s60 of the EEA), it does not appear that that the term 'employment policy and practice' should be narrowly interpreted so as to exclude ad hoc acts of discrimination perpetrated in the workplace which are not expressly endorsed by an employer in any formal document or practice of application in the workplace.

[67] As it has been found that it was an act on the part of the first respondent, which act falls within the definition of a policy or practice as in the EEA which resulted in the applicant not having been appointed to the post, the final issue to be determined is whether this constituted an act of unfair discrimination.

[68] It was the respondents' case that the reason why the applicant was not appointed was due to neither his age nor his gender, but rather as a result of the irregularity in the process which had been the result of Mr Nyilenda having informed him that he was to be appointed in circumstances in which the first respondent had not then yet taken

a decision to this effect.

[69] The respondents did not call the first respondent, being the person whose actions were alleged to have been discriminatory, to testify. The reasons proffered by the respondents' representative for such failure do not amount to a suitable explanation for her absence. Without any explanation from her regarding the reasons for her actions, which would have constituted the best evidence thereof, the respondents have invited me to speculate as to the reasons for her actions ex facie the notations made by her on the documentation in question, together with the interpretations which have been afforded to those notations by their witnesses.

[70] It was the respondent's case that the words, '/ would find this very inappropriate,' were to be understood to mean that the first respondent found it inappropriate to make an appointment in the circumstances of the irregularity in the process as had been detailed by the second respondent on the recommendation itself, being the conduct of Mr Nyilenda in having advised the applicant that he had been appointed prior to her having made a decision.

[71] The applicant, on the other hand, argued that these words were intended to be indicative of the first respondent's previously expressed views regarding the inappropriateness of the applicant being appointed to the post, such views having been predicated upon his age and / or his gender.

[72] I concur partially with the respondents' interpretation of the notation in its context, that the first respondent had indeed found it to have been inappropriate that the applicant had been informed of his appointment in circumstances in which she had yet to approve such recommendation. It does not, however, follow axiomatically that the notation itself informed the reason for her not having appointed the applicant

[73] Notwithstanding. the alleged 'irregularity' in the process, the recommendation that the applicant be appointed to the post had nonetheless been presented to the first respondent for her approval by the HR Department on three occasions post fact the relevant officials having become aware of such 'irregularity'. Had the alleged 'irregularity' been of such grave concern to those involved that it ipso facto resulted in an absolute impediment to the applicant's appointment, and which necessitated the cancellation of the appointment process, it is reasonable to assume that any possibility of the applicant having been appointed in the face thereof would have terminated immediately upon its discovery. It did not.

[74] On each subsequent occasion that the recommendation was placed before

the first respondent for her consideration, the applicant's appointment to the post remained a possibility. At all times the first respondent remained capable of appointing the applicant at her own election, thereby negating the suggestion that the 'irregularity'

was of an order of magnitude tainting the entire process to such degree that any appointment which was made thereafter would have been fatally compromised in the result.

[75] This conclusion is supported by the fact that not only was Mr Nyilenda not seriously disciplined for the infraction, if he was actually disciplined at all, but actively participated in the subsequent recruitment process which ensued after the recruitment process which led to the applicant's recommendation was abandoned.

[76] I am also not persuaded that the first respondent's failure to have appointed the applicant was as a result of his gender, negating both his claim to this effect together with the first respondent's suggestion that this was an appropriate consideration in light of the demographics of the Department at the time.

[77] The reliance placed on gender by both parties, the applicant having alleged that reliance placed by the first respondent on this factor had been unfair and the respondents having advanced the contrary argument, is not borne out by the context of the first respondent's notation in question, '/ agree that we need female candidates as this is a legal and moral obligation.'

[78] That comment formed part of the comments made by her in response to the first recommendation made by the Selection Committee that the applicant be appointed. This recommendation had arisen pursuant to the first respondent having rejected the previous recommendation that Ms Luswazi be appointed, her rejection having been premised on her conclusion that Ms Luswazi had lacked the experience necessary for the post. The first recommendation relating to the applicant had included an explanation by the Selection Committee regarding the initial recommendation of Ms Luswazi and an acknowledgement on its part that it had erred,

'In addressing the Executive Authority comments, the Recruitment and Selection Sub Unit acknowledged the comments that were made by the Executive Authority and reviewed the CV of the recommended candidate, Ms Luswazi in terms of her experience. HR noted that there was an oversight in terms of her being recommended to this post as she does not have tangible experience with regard to water and sanitation as commented by the Executive Authority. Therefore it was evident that the reason to recommend her for appointment to this post was based on her performance during the interview process as well as the need to balance employment targets since the candidate was a female.'

[79] The first respondent's response relating to the Department's legal and moral obligation to appoint females formed part of her response in relation to this aspect of the recommendation which, when read in context, meant no more than that she endorsed the appointment of female candidates, not that she required that a female candidate to be appointed,

'Thank you for an honest response. I am very concerned that his should have been picked up administratively. I agree that we need female candidates as this is a legal and moral obligation.'

[80] Her statement as aforesaid contained no express instruction that only female candidates should be considered, nor that the issue needed to be considered any further. The applicant's gender is accordingly not

found to have been an issue which informed the first respondent's decision not to appoint the applicant.

[81] The only other possible impediment to the applicant's appointment was his age, an issue which was raised repeatedly by the first respondent when giving consideration to the recommendation that he be appointed.

Nothing in any of the notations which have been attributed to the first respondent, as have already been detailed, suggests anything

other than that the applicant's age was that which deterred her from endorsing his appointment.

[82] On the first occasion when the recommendation that the applicant be appointed was given to the first respondent the only observation then made by her relating to both the applicant and the second possible appointee, Mr Rimmer, had been her 'concern' regarding their ages. This concern appears to have been premised upon a belief on her part that their ages would prove to be some type of impediment in relation to 'renewal and skills building' of the Department, although what

precisely such impediment would have been was both unexplained in evidence and impossible to envision in the abstract.

[83] Upon the recommendation having been twice returned to her in the middle of June 2018 she observed on 15 June 2018 that her question regarding a.ge had not been answered.

[84] The first respondent was, at all material times, meticulous in her selection of the alternatives given to her, 'Approved/Not Approved/Varied'. When rejecting the possibility of appointing Ms Luswazi on 27 March 2018, both the words, 'Approved' and 'Varied' were struck out, leaving no doubt that the recommendation was 'Not Approved'. In response to the first of the applicant's recommendations, none of the alternatives were struck out, contemporaneously with the first respondent having raised her concerns regarding the remaining candidates' ages. In the final submission, she scored out only the word, 'Approved', leaving the words 'Not Approved' and 'Varied' intact.

[85] The only reasonable interpretation to be accorded to this is that she did not approve the recommendation that the applicant be appointed on the terms and conditions contained in the recommendation, but that the recommendation was to be varied.

[86] The variation which was envisaged by the first respondent was encapsulated in her note, written on the recommendation dated 7 May 2018, adjacent to the heading, 'Purpose',

'My question about the age was not responded. We can alternatively give Mr Ngcobo 2 years contract due to age - we need to have a plan for putting interns.'

[87] When the first respondent elected not to approve, but to vary the recommendation dated 14 June 2018 which served before the first respondent on 15 June 2018, this could only have been the variation which had been suggested by her as reflected above, which must have been written when the recommendation was placed before her in the middle of June 2018. This is so for the reason that the notation could not have been appended when the first respondent considered the

recommendation at the outset, for she would not at that stage have noted that her question regarding age had not been answered as it had then been posed for the first time. The notation could also not have been appended when the first respondent finally determined that the recommendation be not approved, but varied, for the recommendation which was then placed before her for consideration was dated 14 June 2018, and was not the original recommendation in favour of the applicant dated 7 May 2018.

[88] There can be no doubt that the first respondent refused to appoint the applicant to the post in question on the terms offered by the Department in its advertisement therefor. Her reason for her decision

to vary the recommendation as aforesaid was expressly articulated by her as being, 'due to age.

[89] This conclusion is supported by the evidence of Ms Fenner, elicited in re­ examination, and which was captured as follows,

'There might not be another opportunity for her to get the person she wants, younger and vibrant. She needed to grow our province with younger, enthusiastic people.'

[90] In view of the aforementioned I find that the respondents failed to discharge the onus of establishing that the reason for the first respondent's initial failure and final refusal to appoint the applicant to the post was for a reason other than his age.

[91] The final consideration is whether the act of discrimination was itself not unfair or was otherwise justifiable.

[92] The first respondent focussed its efforts relating to the issue of fairness on the demographics of the Department in relation to gender. I have already rejected the question of gender as having been the impediment to the applicant's appointment and accordingly the demographics of the Department at that time are irrelevant.

[93] Although the respondents pleaded case was that it was,

'... fair and reasonable for the First Respondent to require the Department's officials to consider whether it was an inherent requirement that a candidate, appointed to the post, be relatively young in order to ensure skills retention and renewal within the Department,'

no evidence was adduced which suggested that discriminating against the applicant on the basis of his age would not have been unfair or was otherwise objectively rational. On the contrary, both the respondents' witnesses agreed that there was no reason why a 52 year old person could not have performed in the post.

[94] The inescapable conclusion reached is that the first respondent unfairly discriminated against the applicant on the basis of his age; firstly by failing and finally by refusing to appoint him to the post to which he had been recommended for appointment on the terms and conditions offered by the Department.

Relief

[95] The applicant's unchallenged evidence was that he has remained unemployed since he resigned from his former employment notwithstanding efforts on his part to have found other employment. In the result, he and his family have been obliged to have relied on the salary of only his spouse in the interim.

[96] The applicant has asked that he be appointed to the post, retrospectively to 1 July 2018, albeit that he has accepted that the retrospective remuneration should be curtailed by an amount equivalent to one years' salary as a result of the delay occasioned by him in having referred an unfair dismissal dispute to the CCMA before withdrawing that dispute and pursuing his present claim.

[97] In opposing the possibility of the applicant now being appointed to the post the respondents argued that the actual cause of his non-appointment was his failure to have participated in the further

recruitment process. By having refused to participate therein, he effectively removed himself from consideration for appointment, and it then became impossible for the Department to have appointed him, save through an irregular process.

[98] The issue of the alleged irregularity of the initial process has been dealt with and will not be revisited in detail. In short, at no point did the Department itself conduct itself in accordance with a purported belief that the process which had led to the applicant's appointment was vitiated by Mr Nyilenda's indiscretion. On the contrary, the HR Department persisted on three occasions after Mr Nyilenda's premature disclosure had been made known to it in inviting the first respondent to appoint the applicant.

[99] As there existed no fair reason not to appoint the applicant as a result of that process, there was no fair reason to re-advertise the post and concomitantly no fair reason to require the applicant to

participate in the further process. Whether he was aware of the reason for his non-appointment or not is immaterial to the issue of his entitlement to have been appointed ab initio and is equally immaterial to his decision not to participate in the subsequent recruitment process which ought never to have been

undertaken by the Department at all.

[100] It is common cause that another person was appointed to the post pursuant to the subsequent recruitment process.

[101] The timing of the further recruitment process is relevant to the determination of the relief sought by the applicant insofar as it is clear that the Department advertised the position as having been vacant in circumstances in which it was well aware that the applicant intended to challenge the decision taken not to appoint him.

[102] On 26 September 2019 the applicant's erstwhile attorney notified the Department that the applicant intended to persist with his claim regarding the post. At that time the Department was requested to provide the applicant with the outcome of the interview process. That request was not acceded to and resulted in the applicant having commenced with an application for the disclosure of information in terms of the Promotion of Access to Information Act. The applicant was eventually provided with the information sought by him on 26 May 2020 whereafter he initiated the proceedings in the CCMA on 7 July 2020. Having then applied for and having been granted condonation, the applicant referred his dispute to this court on 19 October 2020.

[103] In the meantime, on 11 December 2019, the Department requested the second respondent to approve the re-advertisement of the post, which approval was given on 14 January 2020. The decision to request authority for the re­ advertisement of the post arose in circumstances in which the Assistant Director: Labour Relations had provided certain advice concerning the matter, including advice that the Deputy Information Officer not respond to the applicant's request for information, and that the Human Resources Department should not respond to the applicant at all.

[104] The re-advertisement at the beginning of 2020 appears not to have resulted in an appointment and the post was again re-advertised in 2021. It was this last mentioned process which led to the appointment of the present incumbent on 1 October 2021.

[105] Any doubts that the Department may have had concerning the seriousness of the applicant's intentions to challenge its decision not to appoint him, and the basis upon which he intended to do so, would have been removed on the day on which the applicant delivered his Statement of Claim, 19 October 2020. Notwithstanding this the Department elected to re-advertise the post at the beginning of 2021 and to fill the post almost one year later on 1 October 2021. There can be no doubt that it did so whilst well aware of the risk it was then taking.

[106] The fact that the Department elected to appoint another individual to the post in such circumstances accordingly cannot debar the applicant from obtaining to the relief to which he is demonstrably entitled.

[107] The only remaining issue pertains to the extent of the retrospectivity to be afforded to the applicant, it being the applicant's suggestion that the appointment be fully retrospective, but with limited remuneration. It would not be appropriate to separate the two dates for to do so would result in a situation in which an employee has been declared to have been appointed, but without remuneration, resulting in complexities in relation to the benefits to which he or she might be entitled as an employee in the intervening period.

[108] In consideration of the facts of the matter I am of the view that the appropriate date to which his appointment is to be made retrospective is 19 November 2019, being the date on which he initiated his request for information in terms of PAIA. Nothing precluded him from having requested the information in question on a date earlier than this. The provision of such information, had it then been made available to him upon request so made, would have allowed him to initiate his claim immediately thereafter. Conversely stated, the applicant himself is found to have been responsible for the delay in the initiation of his claim until 19 November 2019 and

accordingly cannot benefit from his own delay.

Costs

[109] The applicant has asked that he be awarded his costs and I can conceive of no reason, as a matter of either law or fairness, which

militates against such an order.

[110] The respondents' defence of this matter was premised on no more than speculation in circumstances in which no real defence could be found to have existed. The applicant has been put to the expense of incurring the costs of a trial to enforce his right not to have been discriminated against, which costs he ought never to have been obliged to incur.

[111] There was no evidence led to lead me to conclude that the order of costs ought to be on a punitive scale, as was requested by the applicant, and the scale of costs to be ordered will therefore be on a party and party basis.

Order

1. It is declared that the first respondent unfairly discriminated against the applicant on the basis of his age by initially having failed and thereafter having refused to appoint him to the post of Deputy Director: Water and Sanitation in 2018.

2. The respondents are ordered to appoint the applicant to the post of Deputy Director: Water and Sanitation, such appointment to be

retrospective to 19 November 2019, and to pay the applicant such remuneration and benefits as he would have earned had he been

appointed to the post on 19 November 2019.

3. The respondents are ordered to pay the applicant's costs.

Kelsey Allen-Yaman

Acting Judge of the Labour Court of South Africa

Appearances Applicant: Mr B Mgaga, Garlicke & Bousfield Inc Respondent: Mr D Crampton, briefed by Mdledle Inc

[3] Du Tait et al, Labour Relations Law: A Comprehensive Guide (6th edition) at page 696