Legal argument about the Cape Town unicity’s affirmative action policy for its staff began on Friday in what may be a groundbreaking case in the Labour Court.
Former municipal employee Dr Lilian Dudley has taken the city to court, saying it discriminated against her when it did not appoint her to the position of director of health, allegedly because she is black and a woman.
”The case is precedent-setting not only because Dudley says the city failed to apply its own recruitment policy and failed to adhere to chapter three of the Employment Equity Act, but because it challenges the interpretation of employers applying affirmative action factors,” said Michelle O’Sullivan of the Women’s Legal Centre.
She said the case was about a candidate for affirmative action not getting a job, and the point of the litigation was whether blacks, the physically disabled and women could be discriminated against by ”an act of omission on the part of employers”.
”The impact of this failure to implement affirmative action would mean that the demographics of companies would never change.”
O’Sullivan said the case also highlighted whether or not it was possible for an affirmative action candidate to use the court as a means of deciding on a particular matter, particularly in the light of past incidents where it was usually employers who went to court and not employees.
Dudley, who decided to take the matter to court after failing to reach resolution at the Commission for Conciliation, Mediation and Arbitration, was one of three people short-listed by the city for the job of health director nine months ago.
The job was given to the incumbent, Dr Ivan Toms, on the basis of a decision made by the former city manager, Robert Maydon. Arguing on behalf of the city, advocate Les Rose-Innes said that ”affirmative action by its very nature could not confer a right upon an individual employee to lay claim to a particular position on the basis that he/she formed part of a designated group”. – Sapa