Cape Town -A landmark court ruling on the rights of coloured employees in the Western Cape has “set the bar” for all State departments, and could even affect the private sector, say experts and trade union Solidarity.
The union lodged the case along with a group of 10 workers, most of whom are employees of the Department of Correctional Services (DCS). Nine of them are coloured.
The 10 workers approached the court, saying they had been overlooked for jobs and promotions as a result of the department’s employment equity plan, which is based on national rather than provincial demographics.
In a judgment delivered in the Cape Town Labour Court on Friday, Judge Hilary Rabkin-Naicker found that the nine coloured workers had been unfairly discriminated against because the selection process used to decide on their job applications was “premised on the understanding that regional demographics do not have to be taken into account in setting (equity) targets”.
She ordered the Department of Correctional Services to take immediate steps to ensure that national and regional demographics were taken into account in setting equity targets. This, however, was only in respect of people from designated groups, who included women, people with disabilities and people who were black, coloured or Indian.
“In my judgement, the most appropriate relief for the court to order in these circumstances is one that will benefit all employees of DCS in the Western Cape who are black employees of the DCS and members of the coloured community, in the future,” she said.
The claim by one employee, Pieter Davids, a white man, that he’d been the victim of unfair discrimination, did not succeed for several reasons, among them that he was not a member of a designated group.
Solidarity has said that the court’s decision will not just affect Correctional Services employees but all those in public service, such as police officers, while others have said it will enhance the rights of the coloured workforce.
“The legal principle is a victory for the whole of the public service,” said Dirk Hermann, the union’s deputy general secretary.
Solidarity’s Johan Kruger added that the judgment had far-reaching implications for all State departments, which all used the same “formula” when it came to equity targets, because it would “set the bar” as to how affirmative action was implemented. “This means the end of the ideology of an absolute reflection of national demographics at all levels of the workforce,” he said.
Labour lawyer Michael Bagraim, who was previously involved in the case, described the judgment as “a groundbreaking award” that would have “an enormous effect on employment equity and industrial relations both in the Cape and in South Africa”. He expected it would enhance the rights of coloured workers in both the public and private sectors.
Labour consultant Tony Healy believed the judgment would be significant mostly for the Western Cape, which had a large coloured representation, and perhaps for KwaZulu-Natal, which had a large Indian population.
“(The Western Cape) is the one province of the nine that is out of kilter with the dominating demographics of the rest of the country. What this judgment is doing is confirming that the province’s demographics cannot, should not and need not be ignored in implementing employment equity,” he said.
Healy said the ruling would embolden all employers, including those in the private sector, to give greater weight to provincial demographics; though, there were employers in the private sector who already used regional targets.
The department welcomed the judgment, saying it would appoint a team to review its policies.
But Solidarity has described the victory as partial and is set to take a number of points on appeal. Among them:
* There hadn’t been specific relief for the employees as to their appointments.
* While they’d challenged the constitutionality of the department’s plan, there hadn’t been a ruling as to its validity, meaning it still stood.
* The court had found that Davids hadn’t been unfairly discriminated against.
* There’d been no order as to costs, leaving each party to foot their own legal bills.
Cape Times