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MICKEY Arthur might struggle to get a job at Ipswich Grammar, where Shane Watson was never in strife for handing in late homework. |
Former Ipswich Grammar student Watson was the highest profile player to be cut from the Test team touring India by coach Arthur for failing to hand in an assignment on what must change for a better result in the next Test. |
Watson, Usman Khawaja, James Pattinson and Mitchell Johnson were all dropped for not completing the "homework", with Watson leaving the tour and reportedly considering his Test future. |
But Ipswich Grammar School deputy head of curriculum Michael Connors said he found the Australian Test team vice-captain had been a diligent student. |
Mr Connors said Watson had been a willing student and not one to shirk responsibility. |
"I was his English teacher, I was actually head of English at the time and he was in my class," he said. |
"And I've said this to boys afterwards that Shane was always dedicated to his studies, meticulous in his words, but he was always wanting to go that little harder. |
"So it was like, I'm getting a B how can I go and get an A, that good strong work ethic and working hard all the time. |
"This is my observation from when he was here as a student." |
But his dad Bob said Watson could keep playing cricket, and make a good living, playing Twenty20 and in the Indian Premier League. |
Watson remains one of the world's top T20 players after leading the Sydney Sixers to a Champions League title last year. |
Without Watson, who signed with the Champions League-bound Brisbane Heat, the Sixers fell to seventh in the Big Bash League. |
It has been a dramatic fall for the Test vice-captain, who was hours away from leading his country following an injury that nearly ruled out captain Michael Clarke. |
Top test score: 126 v India in Mohali, October 2010. |
Best test bowling: 6/51 v Pakistan, July 2010. |
On Friday, 15 July 2016 the Constitutional Court handed down its judgment in an application for leave to appeal against a decision of the Labour Appeal Court. The decision of the Labour Appeal Court related to a dispute between Solidarity and the Department of Correctional Services (the Department) about the validity o... |
For the period 2010-2014 the Department had adopted the 2010 Employment Plan that contained targets based on the demographic profile of the national population issued by Statistics South Africa in 2005. The Department had also used that demographic profile to assess the level of representation of the various racial and... |
The Department advertised certain vacant posts. Among those who applied were the 10 individual applicants in this case, who are all members of Solidarity. One of them is a White person while the rest are Coloured persons. When most of them were recommended for appointment, the Department refused to appoint them. In reg... |
Solidarity referred an unfair labour practice and unfair discrimination dispute to the Labour Court for adjudication. It contended that the 2010 Employment Plan did not comply with among others section 42 of the Employment Act and was therefore invalid. Before it was amended, section 42 obliged a designated employer to... |
Solidarity also contended that the Department’s decisions not to appoint the individual applicants constituted unfair labour practices and acts of unfair discrimination based on race and gender and should be set aside and the individual applicants should be granted appropriate relief. The Department contended that it w... |
The Labour Court concluded that the Department’s 2010 Employment Plan did not comply with the Employment Equity Act in so far as its numerical targets did not take account of the demographic profile of the regional economically active population but did not declare the 2010 Employment Plan invalid. It rejected Solidari... |
In the Constitutional Court, Justice Zondo, in whose judgment Moseneke DCJ, Jafta J, Khampepe J, Nkabinde J and van der Westhuizen J concur, rejected Solidarity’s contention that the targets contained in the 2010 Employment Plan were quotas. He found them to be numerical targets which were applied with flexibility. He ... |
Justice Zondo held that, since the 2010 Employment Plan had run its course, there was no need for it to be held to be invalid. However, Justice Zondo held that the Department had acted in breach of its obligations under section 42 of the Employment Equity Act in not taking into account the demographic profile of the re... |
He held that the Department used a wrong benchmark – one that was not authorised by the Employment Equity Act. He held that this meant that the Department had no justification for using race and gender to refuse to appoint the individual applicants and that, therefore, the decisions not to appoint most of the individua... |
The Court made an order that the Coloured individual applicants who were denied appointment even though they had been recommended must be appointed to the relevant posts if those posts have not been filled or were filled but are presently vacant and the appointment should be with retrospective effect to the dates when ... |
With regard to those individual applicants who had applied for the posts that remain filled to-date, the Court ordered that their remuneration should be placed at the level at which it would have been if they had been appointed to the posts and this should be with retrospective effect to the dates when they would have ... |
They are Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin. In the case of Mr Davids, his appeal failed because he is a White person and the Department demonstrated that White persons were overrepresented at the occupational level to which he had sought to be appointed. In the case of Mr Jonkers, his appeal failed because ... |
In a separate judgment, Nugent AJ (Cameron J concurring) agreed with the main judgment’s finding that the 2010 Employment Plan was unlawful for its failure to take account of the regional profile of the population, as required by section 42(1)(a) of the Employment Act. Nugent AJ held that, even without the requirement ... |
1. The late delivery of the first to third respondents’ written submissions is condoned. |
2. Leave to appeal is granted. |
3. Subject to paragraph 4, the appeal is upheld. |
4. The appeals by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are dismissed. |
“(a) The claims by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are dismissed. |
(b) The decisions of the Department of Correctional Services not to appoint the rest of the individual applicants to the posts in which they respectively sought to be appointed constituted unfair discrimination and unfair labour practices and are set aside. |
(c) Those individual applicants who had applied for appointment to posts that remain vacant to this day or that are presently vacant even if they had subsequently been filled must be appointed to those posts and be paid remuneration and accorded the benefits attached to those respective posts. |
(d) Those individual applicants who had applied for appointment to posts that were subsequently filled and are presently filled must be paid the remuneration and be accorded the benefits attached to those respective posts. |
(e) The orders in (c) and (d) shall operate with retrospective effect from the date with effect from which the individual applicants would have been appointed to the respective posts had they not been denied appointment. |
6. There is no order as to costs in this Court. |
The applicants have brought an application for leave to appeal against a decision of the Labour Appeal Court (LAC). In terms of that decision the applicants’ appeal against a decision of the Labour Court was dismissed. The decision of the Labour Court related to a dispute between the parties on whether the Employment ... |
The first applicant is Solidarity, a registered trade union. Some of its members are employed by the Department. The second to the eleventh applicants are employees of the Department. They are also members of Solidarity. Except for the second applicant who is a White person, the individual applicants are Coloured peop... |
The first respondent is the Department. The second respondent is the Minister of Correctional Services. The third respondent is the National Commissioner of the Department of Correctional Services (National Commissioner). The fourth respondent is the Minster of Labour. She is the Minister responsible for the administr... |
An employment equity plan is a plan provided for in section 20(1) of the EE Act which an employer prepares, adopts and implements in order to achieve employment equity in its workforce. The first employment equity plan of the Department was for the period 2000-2004. The second was for the period 2006‑2009. In 2010 the... |
The numerical targets in the 2010 EE Plan were based on the mid-year population estimates, 2005, issued by Statistics South Africa. |
In 2011 the Department advertised certain posts in the Western Cape. The individual applicants applied for appointment to some of the posts. Except for Mr AJ Jonkers who was not recommended, all the other individual applicants were recommended for appointment by the respective interview panels. Except for Ms LJ Fortui... |
The 2010 EE Plan made provision for the National Commissioner to deviate from the targets in the 2010 EE Plan in certain circumstances. A deviation meant that the National Commissioner could approve the appointment of a candidate from a non‑designated group in certain circumstances despite the fact that the appointmen... |
“There has been steady progress since the development and implementation of the 2006-2009 EE Plan. |
Female representation at senior management moved from 25% to 30% in June 2009. |
Indians have benefited at SMS level as males stand at 3.5% and females at 1.2%, thus overrepresented. |
Whites have gone up from 12% to 13%. |
Ratio for Africans is also still far from 50-50 and in fact the indication is that more males are still being appointed at this point. |
“Level 3: National Target has been reached for Africans (88%), Coloureds stand at 10%, Indians stand at 2% while Whites are at 1.4%. |
Level 4: Africans stand at 65%, Coloureds at 13%, Whites at 20%, Indians at 1%. |
Level 5: Africans at 85%, Whites at 2%, Coloureds at 12% and Indian at 2%. |
“l White males and Coloureds are grossly overrepresented at salary level 7-12. |
· White males and females are grossly overrepresented at ASD (9 & 10 salary level) by 9% and 4% respectively, while Coloured males are overrepresented by 4% and females by 1%. |
“Recruitment and selection processes were not always EE Plan driven as some appointments that were made were not compliant with the EE targets. |
Lack of commitment and willingness to implement the approved EE Plan targets by some Managers. |
The programme shall be open to scrutiny and information pertaining thereto should be easily accessible to all including recognised and organised labour. |
While the programme targets employees from the designated groups, the department acknowledges the need to accommodate required scarce skills areas, the need for mentoring and coaching and as such non-designated employees would not be excluded. Partnering with relevant stakeholders is therefore critical to ensure the ov... |
The programme shall support the strategic and operational goals of the DCS and shall form an integral part of the Integrated Human Resources Strategy. |
The programme shall recognise that even among the designated groups, varying levels of representativity do exist within the organisation e.g. Coloured males in relation to African males, White females in relation to Coloured females and African females in general in relation to the representation needs of the organisat... |
In striving to address disparities in DCS as stipulated in paragraphs 2.4 supra, acknowledgement and consideration shall be given to disadvantaged employees within the DCS and only then shall consideration be afforded to lateral entrants. |
3.1 Women of all racial groups. |
3.2 Persons with disabilities of all races. |
3.3 Blacks (Africans, Coloureds and Indians). |
· All appointments irrespective of occupational levels within the Department shall be informed by the Departmental Employment Equity Plan. |
· Entry level recruitment shall be Employment Equity Plan driven. |
· Lists of recommended candidates for Salary Levels 9-12 shall be forwarded to the directorate Equity for compliance monitoring before approval by RC’s, DC HRV and CDC Corporate Services. |
· In the event of any form of non-compliance or deviation, concerned managers will be held accountable and action shall be taken by the Commissioner in line with section 24(1)(C) of the EE Act as a requirement by the Department of Labour who are ‘watch dogs’ on behalf of the public service. |
The applicants referred unfair labour practice disputes to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation in terms of the Labour Relations Act (LRA). The basis of the disputes was that the Department’s refusal to appoint each one of the individual applicants on the ground that they ... |
The Labour Court then ordered the Department to take immediate steps to ensure that both national and regional demographics are taken into account in respect of members of designated groups when setting equity targets at all occupational levels of its workforce. It said it did not consider it appropriate to make a cost... |
The applicants appealed to the Labour Appeal Court against the decision of the Labour Court not to grant the individual applicants relief and its failure to declare the 2010 EE Plan invalid. The respondents cross-appealed against the Labour Court’s decision that the 2010 EE Plan did not comply with the EE Act because ... |
The conclusion of the Court was that the deviations from the 2010 EE Plan rendered the numerical targets flexible. For this reason, said the Court, the numerical targets were not quotas. In support of this finding, the Labour Appeal Court referred to the evidence of Mr Bonani, the Director for Equity and Gender in the... |
The Court observed that the 2010 EE Plan had a provision for deviations from the numerical targets which could be implemented in a case where a rigid implementation of the plan could compromise service delivery or where it would not be possible to appoint suitably qualified people from designated groups to the relevan... |
It took the view that it was clear from the testimony of Mr Magagula and Mr Bonani that this was the objective the Department had in mind when it developed its plan to ensure substantive equality for those who suffered the most egregious forms of discrimination under apartheid. |
The conclusion of the Court was that the 2010 EE Plan passed the test required in terms of the EE Act reading it together with the Constitution. It, accordingly, dismissed the appeal. |
This Court has jurisdiction and nothing more needs to be said about that. |
It is in the interests of justice to grant leave to appeal. The matter raises important constitutional issues and the interpretation of legislation enacted to give effect to section 9(2) of the Constitution. Both the Labour Court and Labour Appeal Court concluded that the Department’s 2010 EE Plan did not comply with ... |
The Labour Court concluded that the decisions not to appoint or promote the individual applicants, other than the individual applicant who is not Black, namely, Mr Davids, constituted unfair discrimination but did not grant them any individual relief. It gave no reasons for this decision. The Labour Appeal Court did n... |
May the Barnard principle be applied against a black candidate? |
The applicants’ statement of case in the Labour Court was drafted before this Court’s judgment in Barnard. Part of the case that the applicants put up in that statement suggests that as a matter of principle the Department had no right in law to refuse to appoint a candidate for appointment to a position by reason of ... |
The important question that arises is, therefore, whether the Barnard principle applies to African people, Coloured people, Indian people, people with disabilities as well as women or whether its application is limited to White people. Ms Barnard was refused promotion on the basis that White people were already overre... |
In my view the application of the Barnard principle is not limited to White candidates. Black candidates, whether they are African people, Coloured people or Indian people are also subject to the Barnard principle. Indeed, both men and women are also subject to that principle. This has to be so because the transformat... |
A workplace or workforce that is broadly representative of the people of South Africa cannot be achieved with an exclusively segmented workforce. For example, a workforce that consists of only White and Indian managers and, thus, excludes Coloured people and African people or a senior management that consists of Africa... |
If, therefore, it is accepted that the workforce that is required to be achieved is one that is inclusive of all these racial groups and both genders, the next question is whether there is a level of representation that each group must achieve or whether it is sufficient if each group has a presence in all levels no ma... |
It would be unacceptable, for example, for a designated employer to have a workforce of five hundred employees fifty of whom occupy senior management positions but only five of those senior management positions are held by African people when twenty are held by White people, fifteen by Coloured people and ten by India... |
Nobody can justifiably dispute that, although under apartheid and racial discriminatory laws and practices all Black people suffered hardships, the greatest hardships were suffered by the African people. Indeed, this much was recognised by the High Court in Motala and by the Labour Court in this case. Therefore, any c... |
The EE Act, like all legislation, must be construed consistently with the Constitution. Properly interpreted the EE Act seeks to achieve a constitutional objective that every workforce or workplace should be broadly representative of the people of South Africa. The result is that all the groups that fall under “Black”... |
It will not be enough to have one group or two groups only and to exclude another group or other groups on the basis that the high presence of one or two makes up for the absence or insignificant presence of another group or of the other groups. Therefore, a designated employer is entitled, as a matter of law, to deny ... |
On the basis of the same principle an employer is entitled to refuse to appoint a man or woman to a post at a particular level on the basis that men or women, as the case may be, are already overrepresented or adequately represented at that occupational level. However, that is if the determination that the group is alr... |
Did the numerical targets constitute quotas? |
The applicants contended that the numerical targets contained in the Department’s 2010 EE Plan constituted quotas and not numerical targets. As I understand the applicants’ case, if, indeed, the targets contained in the 2010 EE Plan were quotas, that would support not only the contention that the 2010 EE Plan did not ... |
In Barnard this Court, although not defining a quota exhaustively, held that one of the distinctions between a quota and a numerical target is that a quota is rigid whereas a numerical target is flexible. Therefore, for the applicants to show that the numerical targets constituted quotas, they need to first show that ... |
The applicants acknowledged that the 2010 EE Plan made provision for deviations from the targets set by the Plan. They submitted that the provision for deviations in the limited circumstances in which deviations were permitted could not save the targets from being held to be quotas. In support of their contention, the... |
Once it is accepted that the 2010 EE Plan contained a provision for deviations from the targets of the Plan, then, in my view the targets cannot be said to be rigid, particularly where it cannot be said that the situations in which deviations are permitted are situations that do not occur in reality. The evidence give... |
Furthermore, the provision in the 2010 EE Plan that the Commissioner could authorise deviations in those cases where to do so would accord with the operational requirements of the Department is a provision that gives the Commissioner very wide powers to authorise deviations from the targets. The evidence given on beha... |
Also, as the Labour Appeal Court said, the Department furnished 13 specific names of persons in whose favour it had approved deviations in the Western Cape alone. The 13 deviations made in the Western Cape were made in favour of two Coloured women, seven Coloured men, two White men and two African men. This appears in... |
In his separate judgment (second judgment), Nugent AJ disagrees with my conclusion that the numerical targets of the 2010 EE Plan were not quotas and with my reliance on the provisions relating to deviations in this regard. He expresses the view that the deviations were not part of the 2010 EE Plan but were separate. ... |
The targets in the 2010 EE Plan should not be viewed in isolation as does the second judgment. The correct approach is to look at the 2010 EE Plan holistically including the provisions relating to deviations. After all, the deviations were deviations from those targets. The provisions relating to deviations were part ... |
To this Mr Joubert said: “[t]he employment equity plan I assume”. Counsel for the Department then said: “I am referring to the targets in the plan”. Mr Joubert responded: “[y]es I believe that is what the deviation process refers to”. This shows that the applicants’ own expert witness saw the deviation provisions as pa... |
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