Employment Equity
The Supreme Court of Appeal (SCA) has found in favour of a KwaZulu-Natal man who said he was not appointed at the Grey Hospital in Pietermaritzburg because he was white.
Martin Gordon, who was recommended by a selection panel as the best candidate for the job, approached the Labour Court claiming that he was not appointed solely because of his race and colour.
He submitted that this amounted to unfair discrimination under the Labour Relations Act.
The Labour Court rejected the claim, but Gordon took his case to the Labour Appeal Court.
It dismissed the appeal on the grounds that the successful candidate, a black man, had a direct and substantial interest in the proceedings and that the failure to join him in the matter was "non-suited".
On Wednesday, the SCA reversed the Labour Court's decision, finding that the appointment of the black applicant, supposedly on the grounds of affirmative action, unfairly discriminated against Gordon.
Delivering a unanimous judgment by a panel of five judges, Judge D Mlambo said the court found that Gordon had sought protective promotion which posed no direct implications for the successful candidate.
The SCA found that the appointment of the black candidate in the absence of a plan or programme was ad hoc and therefore arbitrary.
The SCA found that "ad hoc and arbitrary" conduct was not contemplated in section eight of the interim constitution.
The Bloemfontein court held that the appointment of the black candidate therefore discriminated unfairly against Gordon.
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