CCMA rulings about unfair hiring and dismissal practices
By Gary Watkins: MD of Workplace Performance Technologies and workinfo.com and can be contacted on:
# Williams vs. The UWC
CCMA finds for former labour activist
The Commission for Conciliation, Mediation and Arbitration (CCMA) has ordered the University of the Western Cape (UWC) to reinstate a lecturer whose contract was not renewed in the wake of his complaints against the head of his department when Brian Williams, formerly the director of the Western Cape Department of Labour, arrived at the university this year to teach a labour relations module, another lecturer had been appointed in his place.
Several written inquiries by Williams to the university asking why the contract was not renewed were unanswered.
Ruling in his favour, the CCMA points out the university had received at least five letters, but only offered one "brief response" after the matter was referred to arbitration in March. "This is no less than an indication that the decision not to renew the contract was based on arbitrariness, if not vengeance."
As Williams was not informed his contract would not be renewed, the CCMA ruled he "could reasonably have expected" to return to his post this year.
"The non-renewal of the applicant's contract was riddled with such covert conduct that I can't help but smell a rat in the whole process," the ruling read, finding that the former labour activist had been unfairly dismissed.
The contractual dispute came after Williams logged a complaint of misconduct against the chair of the management department because he had reduced final year students' marks by between 3% and 5% in 2000. However, the university cleared Professor Philip Hirschsohn of any untoward action in November last year.
Williams also complained about Dr Russel Ruiters, the then head of the UWC industrial psychology department, for not considering his application to teach in the department's Masters programme.
In its decision the CCMA held the university had not shown the dismissal was related to Williams's conduct, performance or a change in UWC's "operational requirements". Instead it emerged Ruiters did not find fault with Williams's performance, as assessed by his students' pass rate and relationship with him.
The CCMA ruling also points out that universities, established under Acts of Parliament, must exercise their public powers accordingly. "Their actions need not only be transparent, accountable, development-orientated or have good human resource management and career development, but must also be rational," the ruling read.
# University Of Cape Town (UCT) vs. Thomas auf der Heyede
A case of procedural unfairness
In 1995 the University appointed the respondent as a senior lecturer for a period of three years. When the contract expired in 1998, The University did not renew it. The respondent alleges that the University thereby dismissed him. He also alleges that the dismissal was unfair. In the alternative, the respondent alleged that the University's actions pertinent to the renewal of the contract constituted an unfair labour practice. The Labour Court held that the respondent had been dismissed, and that the dismissal was only procedurally unfair.
The University's "Equal Opportunity Employment Policy"(the policy) is central to the issues. The Policy is generally aimed at appointing to its staff, in context, the best persons available. The Policy also identifies a need to develop the careers of black persons and women in order to enlarge the traditional pool of available candidates.
In terms of the Policy The University commits itself to affirmative action in the sense of doing everything in its power to help prepare black persons and women to become equal competitors for every post. While not stated in so many words, the policy is also aimed at seeking a more balanced staff component consisting of the best available white and black women and men.
The University's Equal Opportunity Officer testified that the University has an equal opportunity fund. There are essentially two categories of equal opportunity posts.
The first is that of contract development posts. Persons who have potential, but are not yet developed are appointed in such posts, generally for a period of three years. During the first year these persons’ salaries are paid out of the equal opportunity fund. The further years are paid out of the budget of the relevant faculty.
The EO Officer explained that those charged with the implementation of the Policy try to ensure that the faculties do not abuse these posts by using the individual for the contract period, having the advantage of payment from the fund, and by then simply not renewing the relevant contract. The University wants faculties to make every effort to ensure that such persons are appointed, if possible, for further periods or permanently.
Strategic appointments comprise the second category. This applies to fully qualified persons for whom there are at a specific point in time no posts available. Such a person may then be appointed against a future vacancy. The latter procedure is also followed where the candidate is not an affirmative action candidate, but one whose services the University considers in context to be important to it.
In the middle of 1997, the respondent, who by then had been in the University's employ for more than two of the three year contract period, learnt that a Dr Campbell was to vacate his post in the Chemistry Department. On 18 June 1997 the respondent wrote to Prof Moss, then the Head Of Chemistry, and enquired about the "status of the post" to be vacated. Moss replied that the post had been unfrozen, and was to be advertised soon. The post of lecturer was advertised on 21 July 1997. The respondent, Naidoo and Chibale, and other candidates applied.
On 29 October 1997 the selection committee met. Drs Chibale and Naidoo were interviewed. As regards Dr Chibale, the committee was very positive. They unanimously resolved that he be offered a permanent appointment. The committee’s evaluation of Dr Naidoo was not so positive. Subsequently, however, Dr. Naidoo was offered a permanent appointment.
The first issue to be decided is whether the respondent had been dismissed.
In Dierks v University of South Africa  20 ILJ 1277 (LC) it was held that an expectation of renewal in terms of section 186(b) does not include an expectation to be appointed permanently. In McInnes v Technicon Natal  21 ILJ 1138 (LC) it was held that section 186(b) covers a reasonable expectation of a permanent appointment (1143B to F). It is not for present purposes necessary to resolve this difference of opinion. The Judge assumed, without finding, that a reasonable expectation of a permanent appointment falls within the ambit of section 186(b).
In order to determine whether the respondent had a reasonable expectation, it is first necessary to determine whether he in fact expected his contract to be renewed or converted into a permanent appointment. If he did have such an expectation, the next question is whether, taking into account all the facts, the expectation was reasonable.
The respondent set up a Science Advice Unit. This was a relatively long-term project with the object of creating an interface between the university’s resources and historically marginalised communities. Some of the University's senior personnel encouraged this work. The respondent submitted that this is a further indication that the respondent had the expectation, and that it was reasonable.
The mere fact that the respondent embarked on a project, which could extend beyond the three years, is evidence of no more than that he did his work. The encouragement in itself indicates no more than that the relevant people also thought so. Had the evidence been that the project had at all costs to continue beyond the three years and that only the respondent, and nobody else, was able to continue it, the submission may have carried more weight. Those were not the facts.
From the outset, the University made it clear that the contract was for three years, and that extension to five was only a possibility. In no manner did the University hold out even the possibility of a permanent appointment. When, in the middle of 1997, the respondent, as he put it, "gently prodded" the authorities by inquiring about Campbell’s post, the reaction made it clear that he could expect nothing other than to be considered for the post if he applied for it. The terms of the respondent’s inquiries during September 1997 leave little doubt that he had no expectation. The reply unequivocally informed him that his contract would not be renewed.
The Court was not convinced that the respondent had proved that he had an expectation that his contract would be renewed. The Court found it unnecessary to decide this question because, even if he had such an expectation, it was not a reasonable expectation. The respondent did not reasonably expect the University to renew his fixed term contract. It follows that the respondent was not dismissed.
The Court then considered the respondent's reliance on an alleged unfair labour practice. At the relevant time item 2(1)(a) of Schedule 7 to the Act defined, relevant to the present case, an unfair labour practice as "any unfair act or omission that arises between an employer and an employee, involving ... the unfair discrimination, either directly or indirectly, against an employee on arbitrary ground, including, but not limited to, race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility".
In essence the University's defence to the contention that the appointments constituted racial discriminations is to contend that they were affirmative action appointments made pursuant to the Policy for which appointments the respondent did not qualify. The Respondent did not argue that, by allowing for affirmative action appointments, the Policy was unfair.
His argument was first, that Dr Chibale is not a South African citizen. As such he cannot in law benefit from affirmative action. In the second place he argued that, if the Policy allows for a non-South African to benefit from affirmative action, then the Policy is, to that extent, unfair. In the third place the respondent argued that the Policy, in its own terms, does not allow for permanent affirmative action appointments to be made in terms thereof.
In the case of Dr Chibale the evidence shows that he is a person of conspicuous merit. He was regarded as an asset to the University. The fact that he is black and was to serve as a positive role model for black students was a factor in the overall evaluation of Dr Chibale. That is part of Dr Chibale’s merit in context.
Dr Chibale was ultimately appointed without advertisement not simply because he is black, but because of his merit. There is no evidence that the respondent was held in similar esteem by his colleagues or by those responsible for appointing the University's staff. The evidence shows that he was not rated as highly.
As regards Dr Naidoo, the evidence is not that he was of exceptional merit. His appointment has to be considered as an affirmative action one, albeit not made regularly in accordance with the Policy. The question is whether his appointment without advertisement constituted an unfair labour practice between the University and the respondent.
The Judge concluded that the respondent had no reasonable expectation to be appointed by the University. The fact that Dr Naidoo was appointed as a result of an irregular application of the Policy could not have caused the respondent to expect that he would similarly be appointed.
Dr Naidoo was appointed to a supernumerary post specially created for him. There is no evidence that, had Dr Naidoo not been appointed, a post would have been advertised for which the respondent could have applied. Absent Dr Naidoo’s appointment, there is still no post to which the respondent could have been appointed.
Mr Janisch submitted that the differentiation between Drs Chibale and Naidoo on the one hand and the respondent on the other, impaired the respondent’s dignity and his good name, and thus constituted an iniunia.
As regards Dr Chibale, the differentiation was on the grounds of justifiably perceived merit and cannot be an actionable wrong. As regards Dr Naidoo, his appointment, on the assumption made earlier, resulted from an irregular application of the Policy. The respondent is and has always been aware thereof. He certainly did not expect to be similarly appointed by an irregular application of the Policy. That being said, his dignity could not have been affected by the appointment. A reasonable member of society will not think less of the respondent because he was not also appointed irregularly.