Archive for Unfair discrimination

Affirmative action appointments have to be defensible

Posted in Affirmative action with tags , , on December 8, 2008 by labourlawoffices


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.  


Posted in Employment equity with tags , , on March 10, 2008 by labourlawoffices

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.