Gordon v Department of Health: KwaZulu-Natal

The Department of Health: KwaZulu-Natal advertised a post of Deputy Director: Administration at Grey’s Hospital in 1996. Martin Gordon, a white male with extensive experience and seniority, and Mr Z Mkongwa, a black male colleague, applied. After interviews, the selection panel found Gordon to be the most suitable candidate and recommended his appointment, which was endorsed by the Head of Department. The Provincial Public Service Commission rejected this recommendation and directed that Mr Mkongwa be appointed instead, citing his qualifications, experience and the constitutional imperative to promote representivity. Gordon was not appointed and later claimed that the decision constituted unfair racial discrimination and an unfair labour practice under Item 2(1)(a) of Schedule 7 to the Labour Relations Act 66 of 1995. He sought protective promotion and compensation. The Labour Court dismissed his claim, and the Labour Appeal Court dismissed his appeal on the basis that Mr Mkongwa had not been joined. Gordon then appealed to the Supreme Court of Appeal.

The appeal succeeded with costs. The orders of the Labour Appeal Court and Labour Court were set aside. It was declared that the appointment of Mr Mkongwa instead of Gordon constituted an unfair labour practice involving unfair discrimination. The respondent was ordered to pay Gordon the difference between what he would have earned had he been appointed from 1 June 1996 until his retirement on 28 February 2003, together with interest, and to pay his costs.

The case is significant for clarifying the law on non-joinder in labour disputes, emphasising that relief sought is central to determining a direct and substantial interest. It also provides authoritative guidance on affirmative action in employment, holding that ad hoc, unstructured reliance on representivity does not qualify as a constitutionally permissible affirmative action measure and may amount to unfair discrimination.