Discrimination, Promotion and Employment Equity

Section 6(2)(a) of the Employment Equity Act (EEA) provides that it does not constitute unfair discrimination if the employer takes affirmative action measures consistent with the purposes of the EEA. This means that the employer may discriminate against employees when it comes to making appointments or promoting employees, as long as this discrimination is aligned with the employer’s affirmative action plan or its employment equity policy.

But this also means that the employer must get its ducks in a row — there must be a clear link between the discrimination and the employer’s employment equity concerns. The recent decision of the Labour Court in Baxter v National Commissioner, Correctional Services & another (2006) 15 LC 6.9.3 illustrates a potential pitfall for the employer. The employee, a “Coloured” male, alleged that he was unfairly discriminated against when the employer failed to appoint him to a certain post at Director level and he sought an order from the Labour Court directing the employer to appoint him to the post retrospectively. The employee had been with the Department of Correctional Services since 1986.

In 2000 the Department put in place an employment equity plan in line with the EEA. The Department saw this as an opportunity to re-examine its employment policies and practices and determining where the Department was, at that point in time, where it needed to be, and the actions it would need to take to achieve equality in employment. The focus of the Department’s measures was to improve the situation for individual employees who, because they fell within a particular group, found themselves unfairly affected by certain organisational practices and procedures. By eliminating discriminatory barriers, the Department took the view that it was not granting certain categories of employees an advantage, but that it was removing a bias in favour of some groups. In essence, the Department’s employment equity plan complied with all the principles of a fair and sound plan.

In 2001, the employer advertised various posts, including the specific post in question (Director: Area Manager). Two hundred applications were received for this post, and the employee was one of the nine applicants who were short-listed — he was interviewed in September 2001. After all the interviews had been conducted, the interview panel recommended that the employee be appointed to the post.

The recommendation made by the interview panel was forwarded to the Director: Equity for her consideration, and she also recommended the appointment of the employee. The recommendation was then bounced up to a higher level of management, stating that the employee had the necessary skills and expertise to perform the job and that these could not be compromised for the sake of getting the targets right. But that is where the process foundered: the recommendation was declined and it was stated that the issue of equity should be addressed properly. The reasons for the deviation from the employment equity plan were not seen as being convincing enough.

After having waited in vain for the results of the interview, the employee went through the internal processes to find out why he was not appointed. He still received no response, but saw the position re-advertised (the instruction to re-advertise had come from the National Commissioner). He applied again, but this time around did not even make it to the shortlist. Someone else was appointed to the post (this person was subsequently transferred and a third employee was transferred to the post in question).

Because the Department was not forthcoming in providing the disappointed employee with the reasons for his non-appointment, he made a written request for the record of the interview process in terms of the Promotion of Access to Information Act 2 of 2000. Only in February 2004 did the employee receive the reasons for his non-appointment — these included that the employee did not possess suitable qualifications and experience in comparison with the other candidates and that the recommendations made by the selection committee did not address the Departmental employment equity target.

This gave rise to a dispute concerning allegedly unfair discrimination and the employee referred the matter to the CCMA for conciliation. A certificate of outcome was issued by the CCMA after conciliation failed and the employee then referred the matter to the Labour Court.

Crunching the wrong numbers

The employee gave evidence (not disputed by the employer) that in the Free State Province, the appointment of a Coloured male was favoured and this is where the problem lay: a confusion between national employment equity targets and provincial targets. When asked to motivate the appointment of the employee, the Director: Equity concentrated on the national, instead of the provincial, statistical records. The Director: Equity should have realised that there was no need for such deviation as the appointment of a Coloured male in the Free State fell within the Department’s provincial targets. Had the correct statistical records for the Free State Province been used, the employee’s appointment to the post would most likely have been approved.

If an employer seeks to justify discrimination by referring to its equity plan and affirmative action, the employer was still obliged to show that they acted fairly. But the evidence produced before the Labour Court showed arbitrariness in the implementation of the equity plan. The statistical records relied on by the employer were arbitrary and they were no coordinated with those in the office of the National Commissioner. The Labour Court concluded that the Department’s decision not to appoint the employee to the post was based on unfair discrimination.

The Labour Court ordered the Department to ensure that the employee receives the same salary and benefits (backdated to January 2002, with interest at 11% per year) which he would have received had he been appointed to the post he had applied for.

Striking a balance

Some similar issues arose in Coetzer & Others v The Minister of Safety and Security & Another (2002) 11 LC 6.9.2. In this case the employer also argued that its discrimination on the basis of race was justified by reference to its employment equity plan. Advertisements for vacant posts indicated that the posts were intended for members of designed groups (Africans, Coloureds and Indians) only; some police officers argued that setting aside the posts for members of designated groups constituted unfair discrimination on the basis of race (in contravention of the EEA).

The SA Police Service conceded that it discriminated on the grounds of race, but it argued that this was not unfair discrimination, because it was in accordance with affirmative action measures ― these affirmative action measures themselves being consistent with the purposes of the Employment Equity Act. Whilst the SA Police Service had formulated a general Employment Equity Plan, the Forensic Science Laboratory (under which the explosives unit resorts) did not have its own plan.

The essential question before the Labour Court was whether the SAPS had justified its discrimination against the applicant policemen on the grounds of its affirmative action plan. In answering this question, the Labour Court held that it was necessary to examine the SA Police Service's Employment Equity Plan in the greater context of the Constitution Act 108 of 1996.

What the Labour Court found was that the SAPS, in refusing to promote or to allow the applications of the white police officers, had leaned too far in considering only the representation of people from designated groups in the police service as a whole. But what set this older decision of the Labour Court apart is the fact that the Court attached considerable importance to section 205 of the Constitution of 1996. Section 205 of the Constitution provides for the manner in which the police service is structured (national, provincial and local spheres of government) and that national legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

The High Court has also looked at equity plans and affirmative action measures. In Stoman v Minister of Safety & Security & Others (2002) 11 HC 6.15.1 acknowleged that there may be a tension between ideals of efficiency and representation and, in such cases, a balance needs to be struck. But efficiency and equality are not necessarily separate, competing or even opposing aims. While the advancement of equity and equality in the workplace is and remains an integral part of the process of deciding appointments and promotions, there is a remaining requirement of rationality and, the High Court said, the appointment of people who are wholly unqualified, or less than suitably qualified or even incapable, in responsible positions cannot be justified.

The application of the employment equity plan

The fact that an employer has an employment equity plan, programme or policy is not the end of the matter. The question is also whether the equity plan has been agreed to, where necessary, or whether it has been implemented. Even if there is a working equity plan, the employer must still ensure that no arbitrator or unfair practices occur under the guise of affirmative action. There must be accountability and transparency in the application of the equity plan and the employer must act with a considerable degree of consistency.

When faced with an allegation that it is discriminating on the basis of race, an employer may well seek to rely on section 6(2) of the Employment Equity Act as a justification — that its discrimination is not unfair because it constitutes affirmative action. But it is clear from the cases that a mechanistic, unfair, arbitrary or even mistaken application of an employment equity plan will not survive the scrutiny of the Court. The mere existence of an employment equity plan is not enough — the application of the plan must also be fair.