Arbitrary ground resignation: Differentiation or discrimination?

Note: Emphasis added

Award

Details of the matter

[1] The matter was enrolled for an arbitration hearing in terms of section 6(4) of the Employment Equity Act 47 of 2013 (“the Act”) in the Commission for Conciliation, Mediation and Arbitration on 13 March 2018.

[2] The applicant Ms Izaan Jurgens was present and represented by an official from Suid-Afrikaanse Onderwysersunie (“SAOU”) Ms Elrene Hart. The respondent, Department of Education, was present and represented by Mr Lungisa Mpati the manager.

[3] The parties agreed to file heads of argument by 20 March 2018. The proceedings were electronically recorded.

Issues to be decided

[4] The purpose of this arbitration is to determine whether there was unfair discrimination or not.

Background facts

[5] The context giving rise to the incident of the alleged unfair discrimination on the basis that the applicant had applied for a position of Post level 1, Educator-Teacher foundation Phase at Quest School for learners with
autism.

[6] The applicant alleges that the reason why she was not appointed by the respondent was due to the fact that she had previously resigned at the respondent and went on retirement. This was based on Circular 7 of 1995.

[7] The following facts are common cause:

7.1 It is important to highlight from the onset that the applicant used to work for the respondent but resigned and went on retirement;
7.2 The applicant resigned in 2009 after working approximately 7 years for the respondent;
7.3 On or about April 2016, the applicant and the respondent concluded an employment contract in terms of which the latter appointed the former as agreed to be a substitute teacher with effect from 26 April 2016 and terminating on 30 June 2016;
7.4 The applicant was further employed as a substitute teacher for the periods between 26 July 2016 to 31 December 2016 and 1 January 2017 to 31 March 2017;
7.5 At the time when she applied for the post, the applicant was employed as a substitute teacher at Quest School for learners with autism by the respondent;
7.6 In that year a substantive level 1 educator post was advertised for 2016 academic year and the applicant applied for the same. She attended an interview for the position in question on or about 15 July 2016 together with four other candidates;
7.7 The interview panel initially recommended the applicant as the best candidate for the position based on consensus and not on the scores. This decision was ratified by the school governing body (hereinafter referred to as “SGB”). However, after consultation with the education development officer (hereinafter referred to as “EDO”), one Ms Burger, emerged as the first best candidate and got appointed while the applicant was scored the second best candidate;
7.8 A memorandum known as circular 7 of 1995 is used by respondent as a guideline on how to finalise recommendations and appointments;
7.9 Clause 9 of the circular stipulates:

“in cases where candidates, who previously resigned/retired or whose services were terminated, due to misconduct are recommended for appointment, compelling reasons for the re-appointment of such candidate must be provided as an annex to the recommendation document and the full nomination pack must be submitted via the CPC to the cluster chief director for consideration and approval.”

7.10 The applicant seeks compensation.

Survey of evidence

Applicant’s evidence

[8] The applicant submitted that after the interview process had been concluded she was informed that she had not been successful because she had previously resigned. She felt aggrieved as the governing body in this case could have also made a recommendation and motivated why she should be appointed. In her case there was undue influence that was exercised by the education development officer (hereinafter referred to as “EDO”).

[9] The applicant confirmed during cross-examination that there is nothing in the circular that prohibits re-employment. She further confirmed that there was no barrier in the circular only the interpretation thereof.

[10] Ms Snyman, testified on behalf of the applicant. She had attended the interview and selection process as an observer on behalf of SAOU. After the interviews had been conducted the interview panel had deliberated over the candidates. It was clear from the proceedings that the applicant was the preferred candidate. Though Ms Burger had more points than the applicant, the SGB was of the view that the applicant must be appointed as she was already in the position.

[11] In closing, the applicant submitted that the SGB was unduly influenced by the EDO who unfairly discriminated against her after he had been recommended as the preferred candidate. The respondent had unfairly discriminated against her on the basis that the respondent’s conduct was not rational when they implemented circular 7 of 2015 [sic].

Respondent’s evidence

[12] The respondent submitted that there is no discrimination, in this case as, there was no differentiation to the effect that the applicant failed to establish a prima facie case of discrimination insofar as she failed to show differentiation linked to her resignation in her evidence. The respondent submitted that applicant simply draws unreasonable inferences from the factual matrix insofar as it is not her case that she was told that she was not appointed because of her resignation. She was clearly afforded an opportunity to contest for the relevant position when it was already known that she had previously resigned. Her evidence is not credible nor is it reliable.

[13] The respondent submitted that the highest scoring candidate was Ms Burger but the panel had initially felt that the applicant should be recommended based on the fact that she was already working in the post. At the time the panel was not aware of circular 7 of 2015. When they had approached the EDO he had brought the circular to their attention and highlighted that they must take the circular into account before making a recommendation. The EDO had not indicated that they must change the preferred candidate but merely highlighted that they must take the circular into account. The role of the EDO is to ensure that there is compliance with the legal prescripts in the recruitment and selection process.

[14] Thus there was no discrimination as the respondent cannot be held liable if there was no direct or indirect act or omission from them. There is no discrimination in the case nor is there racial classification.

Analysis of evidence

[15] In accordance with section 6(1) of the EEA provides that no person may unfairly discriminate directly, or indirectly, against an employee in an employment policy or practice on one or more grounds.

[16] In the matter before me, the applicant does not rely on any of the grounds listed in section 6(1) of the EEA. The applicant relies on an arbitrary ground that is having “previously resigned”. Thus the applicant has the burden of proof in this matter.

[17] Generally, a employer must ensure that there are fair recruitment procedures in place within their organisation. This means that the respondent is enjoined to ensure that there is no discrimination at every stage of the recruitment process. It is important to highlight at this stage that the recruitment and selection process involves three stages namely:

• the advertising,
• interviews and lastly the
• selection process.

[18] In this case it is common cause that the respondent advertised the position in question but there is no challenge to the advertisement insofar as the language used is concerned. When one looks at the case the interviewing stage is also not being challenged as this is not an issue pertaining to the interview process being biased insofar as the panellists are concerned or alternatively the standard of questions that were used. The focal point of the award will be on the selection process.

[19] A applicant alleging unfair discrimination within the meaning of section 6(1) of the EEA, must establish that the differential treatment complained of, amounts to discrimination that is unfair. Where the applicant can link the differentiation to a listed ground, a presumption of both discrimination and unfairness is triggered.

[20] Where the differential treatment is not based on a listed ground, that is on an “arbitrary” ground, it is not sufficient to merely allege that the employment policy or practice in question is arbitrary; the complainant must allege and prove that the policy and practice is based on an analogous ground to the listed ground. What is therefore required, is that an applicant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds, namely, that “it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparable manner”.

[21] An applicant relying on an arbitrary ground is further required to establish that the alleged discrimination is unfair. This stage of the test focuses primarily on the impact of discrimination on the complainant and others in his or her situation.

[22] It is clear from above, that the first hurdle that the applicant was required to overcome was the issue whether the differentiation amounts to discrimination. In this case, the circular relied on clearly makes a distinction between the applicant and the other candidates. It is clear from the catalogue of events that the applicant fell within the ambit of employees who had previously resigned and as such she was treated differently from the other candidates insofar as the issue of whether she should be recommended or not is concerned. My reasoning is based on the fact that both the applicant and Ms Burger were both shortlisted and invited for interviews.

[23] In my view to the preceding extent it cannot be said that they were treated differently to each other. It is, further, not the applicant’s case that the relevant scores should have been disregarded and interviews conducted afresh between her and the successful incumbent. It is, furthermore, not her case that those scores were preferred solely for the purpose of discriminating against her because of having previously resigned.

[24] The enquiry does not end on whether there is differentiation or not but goes a step further into assessing whether the respondent’s actions are “arbitrary”? This means were the respondent’s actions irrational, capricious or proceeding merely from a whim. In this case the main intention of the circular was to curb the problem of teachers resigning or taking early retirement. This was undisputed. There were averments made by the applicant concerning the fact that the policy was unfair, but there was no evidence led before me as to whether or not this guideline excluded the applicant from the selection process which cannot be the case as the applicant was involved in every stage of the process.

[25] To take it a step further it is imperative to assess whether the circular constituted a barrier. The applicant’s evidence was instructive in this regard as she conceded that the guidelines did not “exclude” nor did they act as a barrier for job applicants. The main issue was the interpretation thereof. This becomes a subjective inquiry as it’s more a matter of perception.

[26] The perception of unfairness held by an applicant is not sufficient to find that there is unfair discrimination. What is clear from the evidence is that the interview panel whilst conducting the selection had not taken the policy into account. When it was brought to their attention they went back to the drawing board. This would undoubtedly mean that if they wanted to employ the applicant they could have provided written reasons (basically motivated) why she should be employed.

[27] In this case they opted not to write the motivational letter or correspondence. This was not an issue that was challenged by the applicant nor was it explored in the hopes of ascertaining why they had opted not to follow that route. Perhaps the key to the applicant’s question lay with investigating why they opted not to write the motivation.

[28] There are indubitable advantages to perhaps relying on the argument that the SGB primary reason was based on the directive that her status as a employee who previously resigned precluded the applicant from being appointed into the post. However, there is no evidence to support that there was any suggestion nor was there any directive from the respondent (particularly the EDO) that the applicant should not be employed. Furthermore the applicant’s contentions were based primarily on her inferences of the situation based on what she was told.

[29] What was also key is the bundle of documents provided by the applicant into evidence which stipulated that she had been previously advised that other teachers who previously resigned from service are appointed. The policy does not prohibit the applicant from being appointed what it merely does is to enjoin the SGB to provide compelling reasons when seeking to appoint an employee who resigned or retired or in the alternative committed a misconduct. Thus the actions of the respondent are not merely a whim nor are they capricious in nature.

[30] To take it a step further the ground on which the applicant sought to rely on becomes problematic as what became glaringly obvious was that there was no causal link even established to reveal that the ground relied on is the proximate or dominant cause of the differentiation. In other words, is the ground of discrimination a sine qua non for the differentiation (ie would there have been differentiation but for the employee having previously resigned).

[31] What further compounded the issue was the fact that the applicant did not lead any evidence showing the impact of the alleged discrimination. The applicant only constantly maintained that it was “unfair”. This is not enough. It is not enough to make generalised statements pertaining to the impact of the differentiation, the applicant is enjoined to lead evidence that shows how the conduct of the respondent impacted her. This means it’s important to show how she was prejudiced in the circumstances.

[32] This issue was addressed in the closing arguments which are not sufficient as they are merely arguments but not evidence. Under oath, the applicant did not delve into the issue of how the differential treatment impacted her human dignity or how the ground had the potential to impact her human dignity. She merely consistently maintained that it was unfair but that is not enough to lay a factual foundation for a discrimination claim.

[33] In light of the above, it is clear there can be no discrimination.

Award

[34] The application of the applicant, Ms Izaan Jurgens for unfair discrimination is dismissed.

[35] There is no order as to costs.