New light on old questions? University of Cape Town v Auf Der Heyde (Labour Appeal Court)

24 Jul 2013

Introduction:Thomas Auf der Heyde responded to an advertisement for a position of senior lecturer in chemistry at the University of Cape Town (UCT), the duration of which was 'initially for three years with a possible extension to five years'. On 8 May 1995 he was appointed in terms of a 'three-year contract' which stated that it 'does not carry any commitment to a permanent appointment'. Two other lecturers, both black, were appointed at the same time on similar terms. Just over two years later UCT advertised a permanent position of lecturer in the Department of Chemistry. Auf der Heyde applied unsuccessfully. Both of his abovementioned colleagues were, however, appointed to specially created permanent positions which had not been advertised. Auf der Heyde contended that UCT's failure to appoint him or to renew his fixed-term contract amounted to an automatically unfair dismissal, alternatively, that UCT was guilty of direct discrimination against him, alternatively, that his dismissal was unfair due to UCT's failure to comply with the requirements for a fair dismissal on operational grounds. UCT denied that Auf der Heyde had been dismissed or that it had unfairly discriminated against him.