ONCE AGAIN: A RIGHT TO AFFIRMATIVE ACTION

In May 2003, the Labour Court’s decision in Harmse v City of Cape Town (2003) 12 LC 6.15.1 saw the light of day — causing a flurry of interest, media coverage, commentary and criticism (this judgment was reviewed in the IR Network editorial of 18 May 2003). The City of Cape Town, the employer, decided not to short-list the applicant employee for any one of three posts it had advertised, and the employee alleged that he was unfairly discriminated against on the basis of race, political beliefs, lack of relevant experience and/or other grounds.
One of the most important statements made by the Labour Court in this important judgment was that affirmative action is more than just a defence in the hands of the employer and that it should not be confined to this limited role in the elimination of unfair discrimination in the workplace. Affirmative action, the Court held, indicates a more active role than being merely a passive defence against claims of unfair discrimination. Affirmative action entails pro-activeness and self-activity on the part of the employer.
Failure to appoint
The newest decision on this point is Dudley v City of Cape Town & another (2004) 13 LC 1.19.1. In November 2001, the City of Cape Town (the employer) advertised a post of Director: City Health; the applicant employee (a black female medical doctor) applied for the post. So did the second respondent, a white male medical doctor. But at the time, the employee was already serving as the employer’s interim manager: health. Three candidates were shortlisted after the interviews and the City Manager, in the labour consultation with the City’s executive management team, appointed the white male.
The employee requested all information relevant to the decision to appoint the second respondent and not her; dissatisfied with the information provided by the employer, the employee lodged a grievance. A dispute was referred to the SA Local Government Bargaining Council, but the council was of the view that it did not have jurisdiction to hear the matter — it was referred to the CCMA instead. The dispute was classified as an unfair labour practice dispute and unfair discrimination.
In the Labour Court the employee mounted a case with four components: unfair discrimination, affirmative action, the employer’s constitutional obligations and an alleged unfair labour practice.
In respect of unfair discrimination, the employee alleged that the criteria applied by the city in selecting the white male and the manner in which these criteria were applied resulted in direct discrimination against her. Her claim under affirmative action was based on her contention that the employer’s decision to appoint the white male and not herself breached its obligation to implement affirmative action measures in terms of Chapter III of the Employment Equity Act. Similarly, she claimed that the City had breached, amongst others, her constitutional right to equality in terms of section 9(2) and her right to fair labour practices in terms of section 23(1) of the Constitution. She also alleged that her constitutional right to dignity (section 10 of the Constitution) had been infringed.
Her unfair dismissal claim was based on her allegation that the appointment process followed by the employer did not comply with its own policy, that it was arbitrary, irrational, unprofessional and unfair to the employee; that the process was discriminatory against black women and that it failed to give effect to the employer’s affirmative action obligations.
The employer raised an exception to the employee’s claims, meaning in essence that it claimed the employee’s case is not sound in law. While the fact that the employer raised exceptions may make the decision somewhat difficult to read, it does not detract from the importance of this case (and the Harmse decision was also a case related to the exceptions raised by the employer). One of the most important grounds on which the City excepted was that the Labour Court had no jurisdiction, it said, to hear a matter where the aggrieved employee had failed to exhaust the monitoring, enforcement and compliance procedures set out in Chapter V of the Act. This looks simple, but it goes to the heart of the matter — can an individual employee who has not been promoted approach the Labour Court and claim that the employer has failed to comply with Chapter III of the Employment Equity Act?
Analysing the Employment Equity Act
At the heart of the Labour Court’s judgment is its analysis of the Employment Equity Act (EEA) 55 of 1998. One of the most important aspects the Court had to deal with was whether the employee was correct in trying to deploy as a ‘sword’ a principle that was intended as a ‘shield’ for the employer — or was she correctly asserting that affirmative action is a positive instrument which she (an individual applicant in this case) was entitled to wield. At stake here is the distinction between Chapter II of the Employment Equity Act (prohibition against unfair discrimination) and Chapter III of the Act, which relates to affirmative action measures. The question was whether an individual employee, such as the applicant in this case, had the right to use the affirmative action provisions of Chapter III as a ‘sword’ in respect of compelling the employer to appoint her.
In this context, the Labour Court had the following to say:
‘More particularly, it is the City's argument that: affirmative action measures are to be formulated and implemented on a group basis; since they will inevitably involve a degree of discrimination against some persons within a previously advantaged group they require protection; to this end, affirmative action incorporates the function of shield. Mr Rose-Innes, for the City, underlined the distinctions to be drawn between the prohibition against unfair discrimination contained in Chapter II and the detailed provisions for measures to be taken to implement affirmative action set out in Chapter III.
A comparison of these two chapters shows that there are indeed points of distinction that are significant for this case. The prohibition against unfair discrimination is directly enforceable by a single aggrieved individual or by the members of an affected group. Whether or not there has been discrimination is a matter of law and the application of the law to the facts. That is a matter for the decision of this Court or an arbitrator and the content of the prohibition is not in any way the subject of consultation between employer and employees.
By contrast, the structure of Chapter III is such that, by definition, it is intended to and can be brought into operation only within a collective environment. This is inherent in the nature of the duties of an employer outlined in section 13(2). Those are: consultation, analysis, preparation of an employment equity plan and reports to the Director-General on progress in the implementation of the plan. Each of those phases is given statutory content.’ (paragraphs [41]-[43])
In essence, what the Labour Court was saying is that Chapter II (unfair discrimination) can be enforced by either an individual or a group, while Chapter III (affirmative action) relates to issues subject to consultation between the employer and the employees. Chapter II of the EEA does not contain any provisions imposing a duty to consult with employees.
Enforcement and dispute resolution
This distinction between the prohibition of unfair discrimination and affirmative action in the EEA is mirrored by the distinction in the means of enforcement. Section 10 of the EEA provides for enforcement of unfair discrimination matters first by reference to the CCMA, and then the matter is referred to the Labour Court. When it comes to the enforcement of Chapter III (affirmative action), however, Chapter V of the EEA applies.
While the Labour Court does have jurisdiction in matters arising under Chapter II of the EEA, the Court affirmed that individuals have no power to bring affirmative action cases directly to the Labour Court.
Not to follow Harmse
The Labour Court also referred to the earlier decision in the Harmse case, but felt compelled to disagree with the approach outlined there:
‘I regret that I am unable to follow this result. In my respectful view, the learned Judge has not sufficiently maintained the distinction between Chapters II and III that the interpretation of the Act requires. In general, for the reasons set out in this judgment, if due affirmative actions measures have not been applied by a designated employer that gives rise to an enforcement issue under Chapter III and not an unfair discrimination claim under Chapter II.’ (paragraph [75])
For employers, no doubt the most important aspect of the new Dudley decision is that the Labour Court held that there is nothing in the Employment Equity Act that brings about an individual right to affirmative action.