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Employment equity is not an obstacle to the appointment of non-designated candidates
The court confirmed that while employment equity is important it should never be regarded as an absolute bar to the appointment and advancement of non-designated employees.
Court’s decision
In this case, the court had to consider if Barnard, an employee of the South Africa Police Services (SAPS), had been unfairly discriminated against in terms of the EEA by virtue of the SAPS failing to promote her.
Barnard was employed by the SAPS as police captain. She is a white female. She twice applied, for a promotion to the post of superintendent in a specialised unit of the SAPS and was rejected both times. On both occasions Barnard received the highest scores, she was also the only applicant who showed a unique blend of enthusiasm and passion to deal with members of the community. The SAPS rejected her application on both occasions, instead withdrawing the position. The SAPS justified this decision on the basis of the need for representivity within the workplace and on the basis that the post was not critical and didn’t not need to be immediately filled.
Barnard contended that the SAPS’ failure to appoint her to the post when there were no other suitable candidates amounted to unfair discrimination. The Labour Court agreed with her. The Labour Appeal Court disagreed with the Labour Court and the matter then came before the Supreme Court of Appeal.
The Supreme Court of Appeal, in finding that there had been unfair discrimination, made the following material findings:
1. While the EEA allows for preferential treatment for the promotion of employees who are from designated groups (being black people, women and people with disabilities) it does not allow for quotas;
2. That although the focus in employment equity is on designated groups, it is not a barrier to the prospective or continued employment or advancement of persons who are not from designated groups;
3. That in applying the goals of EEA one must avoid the applying of formulae and numerical targets as this could amount to the establishment of quotas, a practice expressly prohibited by the EEA;
4. The considerations of representivity and numerical targets are not absolute criteria for employment; and
5. The fairness of discrimination in each instance will be determined on the facts of the particular case, there is no blanket incantation applicable to all the cases which are likely to come before the courts
Importance of the case
This case makes it clear that while the objects of ensuring employment equity are necessary for the future, which will eventually be colour blind it should not be seen as an absolute bar to the appointment and advancement of employees from non-designated groups. The EEA calls for a more inclusive stance when implementing measures aimed at correcting past injustices.
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Jacques van Wyk is the director: labour and employment law at Werksmans Attorneys. He has a BA (LLB) from the University of Cape Town. He practises labour and employment law, as well as business crime and forensics law. Jacques was named as a recommended lawyer in Labour & Employment by the Legal500 (2010 - 2012) and he co-authored Labour Law in Action – A Handbook on the new Labour Relations Act – 1997 with Frances Anderson. |
