Affirmative action: Solidarity could head back to court due to claims of shocking irregularities during interview process at Tshwane Municipality

The employee of the Tshwane Municipality who applied on four separate occasions for the post in which he has been acting since 2008 and whose application was unsuccessful every time due to "representivity", has been passed over for the position yet again.

This comes in spite of a court order prohibiting the Tshwane Municipality from using employment equity as a criterion for filling the specific position. Trade union Solidarity today announced that it would approach the Labour Court again if the municipality failed to provide reasons in writing as to why Marco De Sampaio, a Solidarity member, has not been appointed in the position in question. The municipality must also refute shocking claims that irregularities occurred during the interview process.

Solidarity gained a court victory regarding the unfair application of affirmative action on De Sampaio's behalf against the Tshwane Municipality in November last year. In terms of the court order that was issued after the parties had reached a settlement, employment equity may not be used as a criterion to fill the position for which De Sampaio applied.

The court also ordered that De Sampaio had to be included in the short list for the vacant post and invited for an interview. The candidates' experience, qualifications and competence were the only criteria that could be taken into consideration. Moreover, the municipality agreed that the position would not be left vacant and would, therefore, be filled following the interviews. The municipality also agreed to provide Solidarity with reasons in writing if De Sampaio was ultimately not appointed in the position.

‘The interview had initially been scheduled to take place by the end of November, but De Sampaio was informed at short notice that it had been cancelled. Because the municipality failed to provide reasons for the interview's cancellation, Solidarity laid a charge of contempt of court against it,' explained Dirk Groenewald, Head of Solidarity's Labour Court Department.

‘The interview eventually took place on 17 January, but De Sampaio was informed on 29 March that he was not the successful candidate and that someone else had scored higher "marks" in the interview.' Solidarity later learned that a black woman had been identified as the chosen candidate and appointed in the post. Solidarity questioned whether the municipality would be able to prove that this candidate was more suitable for the position than De Sampaio.

‘De Sampaio already graduated in 1999 and is registered with the Engineering Council of SA (Ecsa) as an engineer. He has 20 years' experience and has been acting in the specific post since 2008,' Groenewald said. Meanwhile, Solidarity has learned that the candidate appointed in the position only graduated in 2008 and does not have nearly as much experience as De Sampaio.

Moreover, it appears that the questions for the interview were not drawn up by the interview panel, as required by policy, but by the strategic executive director (SED). Further, three members of the interview panel indicated that they suspected that the candidate who was eventually appointed had prior access to the interview questions. Trade union Imatu, who had a representative on the interview panel, confirmed this claim and lodged a formal complaint in this regard.

‘It is clear to us that the Tshwane Municipality is going out of its way to not appoint the best candidate in the position in question. The municipality now has seven days to refute all of our claims. We look forward to meeting the municipality in court again after that.

The municipality and, in particular, the SED are clearly abusing their position of power to discriminate against De Sampaio on the basis of race. Solidarity is still awaiting the municipality's replying affidavits for the initial discrimination case. The union is considering adding the latest irregularities to the contempt of court charge,' according to Groenewald.

De Sampaio applied for the position of deputy director of systems development at the municipality's Department of Water and Sanitation for the fourth time in September last year. He has been acting in this position for the past three years. However, he was passed over for the position every time due to the unfair application of affirmative action, and the post was left vacant.

Solidarity referred a dispute regarding unfair discrimination on the basis of race to the Commission for Conciliation, Mediation and Arbitration (CCMA) on behalf of De Sampaio, after which the trade union gained a victory over the municipality in the Labour Court.

Statement issued by Dirk Groenewald, Head: Labour Court Department, Solidarity, April 5 2012

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