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Lilian Dudley v The City of Cape Town & Another: Judge Tip - Affirmative Action - Employment equity and discrimination

Labour Court: C828/02

Lilian Dudley v The City of Cape Town & Another: Judge Tip - Affirmative Action - Employment equity and discrimination

Source: CCMAil January 2004 Reviewed by Sarah Modise www.ccma.org.za

The applicant applied for a position and was informed that she was unsuccessful. She referred a dispute to the CCMA. After conciliation, the matter remained unresolved and a certificate declaring the matter unresolved was issued. The applicant then referred the matter further to the Labour Court.

Noted: The applicant contended the following: firstly, that the respondent had breached its obligations in implementing affirmative action measures by appointing someone else. Secondly, that the respondent should have implemented affirmative action measures and appointed her. Therefore, such a breach had amounted to discrimination, Thirdly, the applicant contended that the failure of the employer to appoint her, had breached her right to equality as stipulated in the Constitution and fourthly, that the failure to appoint her had amounted to an unfair labour practice in terms of item 2(1)(b) of Schedule 7 of the LRA.

The respondent in reply, raised five grounds, namely:

  1. That the applicant was inconsistent in terms of the relief that she sought in the present case and that sought in another case which she had previously referred,
  2. That its failure to apply affirmative action measures by failing to appoint someone from a designated group could have not constituted unfair discrimination in terms of s 6 (1) and (2) of the EEA,
  3. That the Court did not have the jurisdiction to entertain a claim related to other employees,
  4. That the applicant’s claim that she was "a better candidate" than the one appointed and that affirmative action should have been applied in order to appoint her as a candidate. This claim was found to be mutually inconsistent and/or contradictory, and
  5. That the applicant’s claim that the dispute was an unfair labour practice in terms of item 2(1)(b) of the LRA should have been referred to arbitration. It also did not consent that the Court should have heard the dispute as an arbitration process. Alternatively, should the Court hold that it had jurisdiction, the applicant had failed to plead facts indicating that there was an unfair labour practice and the necessary jurisdictional facts were absent.

Grounds B & C

Ground A was not persisted with and grounds B & C were combined.

Noted: In terms of the EEA, there is a distinction between the processes to be followed. Disputes related to chapter II of the Act (unfair discrimination) need to be referred to the CCMA and disputes related to chapter III of the Act (affirmative action) are required to be referred to the Commission for Employment Equity.

Held: The Court held that in terms of the Act, nowhere was it stipulated that an individual employee could bring a dispute related to affirmative action directly to the Court. The right procedure for an individual would be to refer an alleged contravention of the Act to the Director-General and the Commission for Employment Equity. See Stoman v Minister of Safety and Security and others (2002) 23 ILJ 1010 (T) , Sheetmetal Worker’s Industrial Association v EEOC 478 US 421 (1986) and Abbott v Bargaining Council for the Motor Industry (Western Cape) (1999) 20 ILJ 330 (LC).

Further held: That the applicant did not have locus standi to approach the Court directly for an order that the respondent had to prepare and implement an employment equity plan.


Ground D

Noted: The applicant first pleaded his case based on alleged unfair discrimination, which was then followed by the heading "affirmative action", the last paragraph of which reverted to the allegations related to unfair discrimination.

Held: It was unclear what the applicant wanted to say. The applicant needed to discretely state his case in order for the respondent to be clear on the case it had to meet.

Ground E

The applicant’s unfair labour practice claim was based on item 2(1)(b) of Schedule 7 of the Labour Relations Act

Noted: The relevant procedures for such a dispute are governed by item 3(4)(b) which stipulates that such disputes need to be resolved through arbitration.

Further Noted: S 158 (2) of the LRA stipulates, " if at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the disputes ought to have been referred to arbitration, the Court may -

  1. stay the proceedings and refer the dispute to arbitration; or
  2. with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make".


Held: That the Court did not have jurisdiction to preside over the matter as the other party did not consent to it.

The Court upheld that the exceptions that were taken by the respondent under grounds B, C, D and E. The applicant was granted one month from the date of the order to apply for leave to amend her statement of case, or by agreement with the other party, extend the period. In the event that the applicant sought not to amend her statement within the given period, the application was to be dismissed. Costs were reserved.

Case references

Bargaining Council for the Motor Industry (Western Cape) (1999) 20 ILJ 330 (LC)

Coetzer and Others v Minister of Safety and Security and another (2003) 2 BLLR 173 (LC)

Department of Justice v CCMA & Others (2001) 11 BLLR 1229 (LC)

Harmse v City of Cape Town (2003) 6 BLLR 557 (LC)

Marnitz v Transnet Limited t/a Portnet (1998) 19 ILJ 1501

Sheetmetal Workers’ Industrial Association v EEOC 478 US 421 (1986)

Stoman v Minister of Safety and Security and Others (2002) 23 ILJ 1010 (T)


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Gary Watkins

Gary Watkins

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