Affirmative action appointments have to be defensible

Introduction

Affirmative action

Affirmative action

Appointments and promotions supported by affirmative action considerations are, as a general principle not a contentious issue in the South African workplace nowadays.  What is, however, contentious is whether such affirmative action appointments and promotions are correctly understood, done in accordance with fair labour practices and the constitutional imperatives of promoting equality in and transforming the workplace.

It is therefore always welcome and informative to take cognisance of how the Supreme Court of Appeal interprets the application of affirmative action in employment.

The recently reported case of Gordon v Department of Health:  Kwazulu Natal is instructive in this regard.

The appellant, the then Assistant Director of a hospital, applied for the post of Deputy Director:  Administration at another hospital.  After interviewing the candidates, the selection committee decided that the appellant was the most suitable candidate, based on his strong leadership and planning and control competencies, criteria which were found lacking in the other candidates.  The panel’s recommendation was endorsed by the province’s Department of Health, but not by the Provincial Public Service Commission, which directed the Department to appoint a black male candidate.

The appellant instituted action in the Labour Court, claiming to have been unfairly discriminated against on the basis of race.  The Labour Court dismissed the application and the appellant appealed to the Labour Appeal Court.  Such Court held that the application was fatally defective because the successful candidate had not been joined or “at least” had not been afforded the opportunity to be heard, and dismissed the appeal on that basis alone.

The Appeal Court found that the Labour Appeal Court had erred by finding that the successful candidate should have been joined.

Merits of the claim

The Court noted that the appellant’s contention was that in the absence of a rational policy, plan or program which justified the Department acting in an inherently arbitrary manner, the failure to appoint him was discriminatory and unfair.  The Department contended that its decision was beyond judicial scrutiny because, even in the absence of a specific plan or policy, appointing a black candidate was a measure designed to promote equality and transformation of the public service.

The Court found that the appellant had been discriminated against on the basis of his race.  Item 2 (1) (a) (since repealed) of Schedule 7 of the Labour Relations Act 66 of 1995 which applied, provided that, in spite of the prohibition of discrimination, employers could adopt employment policies or practices “designed to achieve the adequate protection or advancement of persons or groups or categories of persons disadvantaged by unfair discrimination”.

The Court held that while affirmative action is designed to uplift the previously disadvantaged, the question was whether the appointment of the successful black candidate in this case was a measure falling within the terms of that item, as read with the Interim Constitution Act 200 of 1993.  The Court noted that item 2 (1) (a) dealt with employment policies and practices.  It held that in cases involving alleged discrimination, the Courts have always focused on the policies or plans by which employers sought to defend themselves to establish whether those plans or policies were rationally connected with the constitutional imperative of promoting equality.  The Court noted that ad hoc or random actions were found incapable of meeting such objective.  The Court therefore deduced that properly formulated plans go a long way to meeting the requirements of rationality.  Thus rational affirmative action plans or programs are approved while ad hoc or random actions are impermissible the Court stated.

Turning to the facts, the Court noted that the argument that the successful candidate’s appointment was a measure to advance employment equity was the only justification advanced for discriminating against the appellant.  The Department had no policy or plan.  Neither was the Commission able to provide a coherent explanation for rejecting the appellant, or to explain how the question of representivity was addressed in the recruitment and selection process.  This, the Court said, indicated that the Commission held a view that the only way to promote equality was to appoint black candidates.  The appointment was accordingly found to be clearly ad hoc, arbitrary and unfair.

The Court concluded that in the quest to attain representivity, efficiency and fairness were not to be compromised.  To justify the failure to appoint a candidate who complied with stipulated requirements it had to be shown that such action was not unfair.

The Court concluded that in the absence of an equity plan, the Department was obliged to follow legislation pertaining to selection and appointment, none of which permits the rejection of suitable candidates on the basis of race alone.

The appeal was upheld and the Department was ordered to pay the appellant the difference between the salary he received from 1996 to the date of this retirement in 2003, and the salary he actually would have received had he been promoted.  

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