Judgment on employment equity hailed

File photo

File photo

Published Apr 11, 2015


Cape Town - Regional and not just national demographics should be taken into account for employment equity targets.

That was the ruling on Friday by the Labour Appeal Court, in a decision which trade union Solidarity has described as a major setback for the government’s stance on the issue.

The ruling stems from a 2013 ruling by the Labour Court in Cape Town that the Department of Correctional Services take steps to ensure that both national and regional demographics be taken into account in setting equity targets.

Solidarity and some of its members launched an unfair-labour-practice dispute on the basis that they had been discriminated against when their applications for positions within the department were unsuccessful.

Solidarity argued that the department’s employment equity plan for 2010 to 2014 contravened the Employment Equity Act, saying it was racist and sexist because it required a rigid application of quotas based on demographic representivity, and did not take into account regional demographics.

The Labour Court, however, dismissed their applications for promotion in cases where the posts had yet to be filled, and their call for the alternative that they be provided with the pay and benefits they would have received had their job applications been successful.

The members appealed against the dismissal of that part of their application, while the department cross-appealed the court’s findings on its employment equity plan.

In the appeal, the court heard argument that the act, which specified that national and regional demographics must be considered, was amended in 2013 so that the word “must” was replaced with the word “may”.

In the judgment, written by Judge President Basheer Waglay and Judge Dennis Davis, the Labour Appeal Court found that the amendment only came into force in August, long after the plan was implemented. In addition, the Labour Court’s ruling was made in October 2013, before the amendment came into effect.

The department therefore had an obligation to take account of regional demographics, the judges found. They pointed out that even though the word “must” was amended, “there will be factual contexts in which it is difficult to envisage how a plan could pass legal muster without a consideration of regional demographics”.

Providing an example, the judges said that about 50 percent of the economically active population in the Western Cape was coloured, which meant that the application of a plan such as the department’s would result in significant discrimination.

“Similarly, in a province where more than 79.3 percent of the population is African, this could result in a similar significant reduction in African employees in the province, which plan would again manifestly work to their disadvantage and constitute a clear infringement on dignity to those who were the very target of apartheid’s racist policies,” the judges said.

Even if the word “may” was employed, “given South African history, the failure to take account of the impact of regional demographics on the nature and purpose of the plan adversely reduces the contribution of restitution towards substantive equality, and hence the attempt to achieve the effect goal of developing a non-racial and non-sexist society”.

The judges said it was best left to the department to develop an appropriate plan.

The court was unable to make a decision on the promotion of the employees due to the “paucity of evidence”, the amount of time that had lapsed, and the fact that the employees did not focus their attention on the issue of deviations from the plan in any detail.

Acting Judge Nomonde Mngqibisa-Thusi concurred.

“This judgment is a major victory for Solidarity and a major setback for the state’s policy to apply the national demography all over South Africa,” Solidarity chief executive Dirk Hermann said.

Although Solidarity won on principle, it intended to go to the Constitutional Court because no legal remedy was given to the employees.

Weekend Argus

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