EMPLOYMENT EQUITY IS ALIVE AND WELL

The application and scope of the Employment Equity Act 55 of 1998 is regularly tested and adjudicated upon in the Labour Court.  An Applicant for a promotional post whose candidacy is recommended by the selection committee concerned is often aggrieved if someone else is appointed in his / her place.   

In a recently reported Labour Court judgement an Applicant complained that his employer only had regard to gender and race representativity in the appointment process.  The employer had made a conclusive decision not to appoint the Applicant, in order to appoint someone of a different gender or race group.  The Court held that this constituted discrimination on grounds of race and gender, and cast on the employer the burden of proving that the discrimination was fair.   

The Applicant submitted that the arbitrator had failed to have regard to the fact that the employer did not have any equity plan; that the representativity targets set by the employer had already been met, and that the yardstick in respect of representativity was the particular level, and not the department as a whole.   The Court held that although the employer did not have an employment equity plan, it operated within a frame work of policy statement and targets with reference to its employment equity goals and objectives.  Therefore the fact that it did not have a plan did not by itself render the refusal to promote the applicant unfair.   

The Applicant’s claims that the employer had in fact reached its equity targets, had not been contradicted.  Furthermore, although the employer had conceded that the most urgent corrective measures were required in respect of people with disabilities, it was apparent from the evidence that the Applicant’s undisputed disability had not been considered at all.   It appeared that the employer had applied preferential treatment within the designated groups, with specific reference to gender when the application had specifically indicated that race, gender and disability status were relevant.   

The Court noted that the employer’s equity policy specifically stated that once specified representivity levels had been achieved, merit alone would be the only consideration in promotions and appointments.  The Applicant’s qualifications for the job were beyond reproach and therefore, had the employer applied the policy directive, the Applicant would have been promoted.   It was apparent from the policy directive that representivity had to be looked at, at the particular level and not in the department as a whole.  The employer had considered representivity levels in the department as a whole, rather than in the division concerned, as required by the employer’s policy. 

The Court was satisfied that the employer, in rejecting the considered and reasoned recommendation of the selection committee, overtly relied on the enhancement of gender representivity in the department as a whole, thereby ignoring in their entirety all the other factors that he ought to have considered.  The finding therefore was that the employer’s refusal to promote the Applicant was unfair and that affirmative action had been applied in an arbitrary and unfair manner.      

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