Durban - A KwaZulu-Natal policeman who was overlooked for a promotion because of his race has won his case at the Durban Labour Court and been awarded R333 000 in backpay.
The officer, Captain M Munsamy, applied for three superintendent posts in 2000. He was recommended for one of the posts, but was not appointed because “Indian males were over-represented and Africans were under-represented” at the level of superintendent, Acting Labour Court Judge Benita Whitcher said in her judgment.
In respect of the other two posts, police management said he lacked relevant experience for one, and the other required a female to be appointed for “representivity”, she said.
Munsamy achieved the rank of major, which is equivalent to superintendent, according to the old ranking, in May 2011.
He then sued the police ministry and department for unfair discrimination, claiming the difference between the salary he was paid and the salary he would have been paid had he been promoted 11 years earlier.
Judge Whitcher has now found in Munsamy’s favour, and has also ordered the police to pay the costs of the lawsuit.
In his testimony before the court, Munsamy said he should not have been overlooked because he had more than 25 years service at the time he applied for promotion, and had performed important functions relevant to the post, including inspecting police stations.
He also said he should not be forced to relocate anywhere else in order to obtain a promotion. He was born and bred in KZN, and a move outside the province would necessitate him leaving his home, his extended family and having to incur the expense of accommodation in another province.
The court said the main stumbling block which prevented Munsamy’s promotion was a document, authored by the police’s employment equity division, which said that 70 percent of the posts were earmarked for black people.
“Fixed quotas for the promotion process were essentially established. The numerical goals document reflected that Africans were to be awarded 192 posts. As there were only 195 posts available for promotional purposes, this target reflects that almost 100 percent of the proposed posts were to be given to African applicants. If the document had been followed strictly, it would have required that no single Indian person be promoted.”
The judge found that, while affirmative action could be used to make an organisation representative, this had to be done according to a valid employment equity plan.
“An employer may not prefer one group of designated employees over another apparently ‘over-represented group’ in the absence of proper proof. The application of affirmative action measures which resulted in the applicant (Munsamy) being denied promotion was not in line with a defensible employment equity plan, and the conduct of the respondent (police) was unfairly discriminatory,” the judge found.
Munsamy’s lawyer, Siphokazi Bosi, said she had received notice the police would appeal the ruling.
The Mercury