Benjamin v University of Cape Town - "Employee" v "Employer"
Case No. C1041/2001
Judgment Date 19 September 2003
Jurisdiction Labour Court, Cape Town
Judge Ndlovu AJ
Subject Grievance/(Residual) Unfair Labour Practices, Failure to appoint
Issue: Grievance/ (residual) unfair labour practices - discrimination - unsuccessful employee for post claiming that he was discriminated against on ground of sex - allegation not proved
Summary of evidence: The questions the Court had to answer were: whether the failure to appoint the applicant employee and the appointment of Ms Strauss to the position of senior subject librarian, WH Bell Music Library constitutes unfair discrimination in terms of section 6(1) of the Employment Equity Act 55 of 1998 ("the EEA") on the basis of sex, alternatively because the employee is better qualified than the successful candidate; whether an employee may enforce a general right to fair labour practice in terms of section 23 of the Constitution, that has not been given effect to in legislation, in the Labour Court; In the alternative, whether the failure to appoint the employee violates the employee’s right to fair labour practice[s] in terms of section 23 of the Constitution; whether the procedure followed in the selection process violates the employee’s right to fair labour practices in terms of section 23 of the Constitution.
The employee, who was already employed at UCT, applied for a vacant post as senior subject librarian (Music), University of Cape Town. His credentials were in line with post requirements as advertised. He was short listed and recommended by the selection committee, however a female was appointed to the post, who, the employee felt, did not meet the stipulated requirements as well as he did. He alleged sex or gender discrimination because he could think of no other rational reason that Strauss had been preferred over him.
The employer has a selection process in place which was followed. It was admitted by the employer that selection criteria can be adjusted at interviews if circumstances relating to the post changed. In this case, it was confirmed that there was a staff conflict in the department which necessitated the management skills becoming a paramount requirement for the post. The executive librarian felt the short listed employees were not strong enough in their managerial experience and requested the selection committee to reconvene with interviews. They recommended the post get re-advertised or other employees applying for the same level positions in other departments are invited to apply. The second option was followed and a female employee was invited, applied and due to her history of good management, and other relevant experience she was offered, and took up the position.
Summary of Judgement: The employer is a public educational institution and those people appointed to run its management and administration are functionaries, the exercise of whose powers need not be lightly interfered with. The majority of the witnesses called by the employee gave evidence which was, invariably or occasionally, as the case might be, either hostile or unfavourable to the employee’s case. It does appear, both on paper and through interviews, that whilst the employee had seemingly better subject music qualifications than Strauss, he (the employee) had less managerial experience than her. However, it would appear, on the evidence, that for one to head a library in any specific department one did not need to have a qualification in the field of the department concerned. It cannot be comprehended on what empirical basis a music library could be placed on a different footing in this regard from other libraries.
The evidence in support of the Employer’s case was straightforward, credible, rational and more reliable. The evidence of the two witnesses, was not only corroborative of each other, but was further corroborated by the employee’s two witnesses in all and every material respects, and, to a lesser extent, by that of the employee’s other witness.
In conclusion, the evidence before the court did not show, beyond a balance of probabilities, that the employer, by not appointing the employee and instead appointing Strauss to the said post, thereby committed either an unfair labour practice or an unfair discrimination, or violated any of the employee’s rights enshrined in the Constitution. There appeared to be nothing to persuade the court to deviate from the general and traditional rule that "costs follow the result" and the in the result, the employee’s application was dismissed with costs.
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