Advocate Paul Pretorius SC is one of the most experienced and highly respected practitioners in the field of Employment and Labour Law. Apart from “struggle credentials” he was intimately involved in the formation and operations of IMSSA (Independent Mediation Service of South Africa) during the 1980s.
Recently he acted as a judge in the Labour Court and last Friday he delivered a carefully worded and well reasoned ground-breaking decision.
In Solidarity obo Barnard v SA Police Services case no: JS 455/07 dated 26 February 2010 Pretorius AJ held that the State in its capacity as employer of Captain Barnard had unfairly discriminated against her on the basis of race when it failed to promote her to the rank of Superintendent on a salary level of 9 despite being the best candidate for the post.
Pretorius AJ also held that there was a lack of consideration for her right to equality and dignity. Having failed to discharge the onus of proving that the proven discrimination was fair there was a breach of the Employment Equity Act 55 of 1998 and the State was ordered to promote her to the post of Superintendent with effect from 27 July 2006.
It is important to bear in mind that the Constitutional Court, the Supreme Court of Appeal and the Labour Court have already established certain principles regarding the application of equality and dignity in the workplace and elsewhere.
These principles were accepted by Pretorius AJ. In para [25.4] he did make the point that unlike previous cases here the State had failed to fill the post and in the absence of a clear and satisfactory explanation promotion should not ordinarily be denied to a suitable candidate from another group.