Employment equity application dismissed

The Constitutional Court has dismissed an application for leave to appeal directly to it made by a coloured woman who was overlooked for a top job in favour of a white man.

It said on Thursday that disputes over the Employment Equity Act should be settled by the specialist Labour Appeal Court and not by the Constitutional Court.

Chief Justice Arthur Chaskalson said it was not in the interests of justice to allow Dr Lilian Dudley direct access to the court.

In 1999 Dudley, who had been acting health director in the Cape Town unicity, lost the permanent post to Dr Ivan Toms, who still holds it.

She lost a Labour Court application to have Toms’s appointment overturned because of the Act and because she believed herself to be well-qualified for the job.

However, Dudley’s application for leave to appeal to the Labour Appeal Court has not yet been decided, and was a decision conditional on the outcome of Dudley’s Constitutional Court application.

Chaskalson said the court has made no judgement on the merits of Dudley’s case, but believes the Labour Court and the Labour Appeal Court are the correct arena in which to contest interpretations of employment equity legislation.

He also said that the issue is unquestionably a constitutional one, but that if his court does have to consider the matter it would benefit from the Labour Appeal Court’s views.

“There can be no question that the [Employment Equity Act] is a statute that was enacted to give effect to the constitutional right to equality by, amongst other things, eliminating unfair discrimination in the field of employment.”

Chaskalson said the Labour Appeal Court should not be bypassed because it is a specialised court “charged with the responsibility for overseeing the ongoing interpretation and application if labour laws and the development of labour jurisprudence”.

“Effect must be given to this by ensuring that these courts are not bypassed in matters that fall within their jurisdiction unless there are compelling reasons to do so.”

Importantly, there were now two conflicting judgements on the question of whether affirmative action could be the cause of litigation, one being Dudley’s case. Neither has been decided by the Labour Appeal Court.

Chaskalson said the specialist labour court should decide on the matters first.

He made no order for costs.

A document containing argument on the issue, faxed to the court in February, and which was only brought to the judges’ attention on Thursday morning, had been read and had no bearing on the already-prepared judgement, Chaskalson added.—Sapa


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