Affirmative action: The uncertainty continues The main purpose of affirmative action (AA) is to make amends for the effects of past discrimination, end discrimination, promote equality and transformation in the workplace. However, there are some concerns about AA: The progress towards implementing AA measures in the workplace is slow and our courts provide conflicting decisions on the interpretation and application of AA legislation... Olivia Timothy
Author: Olivia Timothy Olivia Timothy is an admitted attorney. She has an LLB (University of KwaZulu- Natal) and LLM Labour Law (University of South Africa). Because of her passion for labour relations, she joined the HR industry about six years ago. She is well known within legal circles and she is currently an HRD practitioner at Werksmans Attorneys. Her career focus involves, among others: B-BBEE, Employment equity, Labour relations, Performance management, Skills development, and Recruitment. She is a member of the South African Board of People Practice (SABPP) and she recently joined the Black Management Forum (BMF). She has previously featured in publications such as Careers SA and South African Youth Success. She presents widely at HR conferences.
What legislation applies to AA? The Constitution of the Republic of South Africa 108 of 1996 The constitution lays the foundation for an open society based on: 1. Democratic values, 2. Social justice, 3. Fundamental human rights, and 4. Equality. AA has its roots firmly embedded in section 9(2) of the constitution which is also termed the equality clause that focuses on unfair discrimination: Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken. In Minister of Finance v van Heerden [2004] 12 BLLR 1181 (CC), it was held that to test if an AA measure fails the equality clause of the constitution you need to ask: 1. Does the measure target people, or categories of people, who have been disadvantaged by unfair discrimination? 2. Is the measure designed to protect or advance these people who ve been disadvantaged by unfair discrimination? 3. Does the measure promote equality? The Employment Equity Act 55 of 1998 Because of apartheid and historically discriminatory legislation, within the national labour market there are imbalances in: Employment, Occupation, and Income. The Employment Equity Act 55 of 1998 (EEA) was designed to promote fairness in designated groups: Black people 1, Women, and 1 Black people is a generic term that includes the following race groups: Black African, Indian and Coloured people in terms of section 1 of the EEA. This definition was further extended to include Chinese people who became South African citizens before 1994. See Chinese Association of South Africa and others v Minister of Labour and Others No 59251/2007 18/06/2007 TPD.
People with disabilities. A designated employer, as defined in the EEA, is: 1. A person who employs 50 or more employees, 2. A person who employs fewer than 50 employees but has an annual turnover equal to or above the annual turnover of a small business 2, 3. A municipality, 4. An organ of state but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service, and 5. An employer bound by a collective agreement. Section 6 of the EEA prohibits unfair discrimination and has a similar objective to the equality clause in the constitution. However, section 6 clearly states that, in the following circumstances, it is not unfair to discriminate: Promoting AA measures that are in keeping with the EEA s purpose, or Distinguishing, excluding or preferring any person on the basis of an inherent requirement 3 of a job. According to section 11 of the EEA, whenever unfair discrimination is alleged in terms of the EEA, the employer against whom the allegation is made must establish that it is fair. Section 15 of the EEA defines affirmative action measures as, among others: Measures which are designed to ensure suitably qualified people, from designated groups: - Have equal employment opportunities, and - Are fairly represented in all occupational categories and levels in a designated employer s workforce. AA measures that designated employers implement must include methods: To identify and eliminate barriers to employment (including unfair discrimination) that adversely affect people from designated groups, 2 In terms of Schedule 4 of the EEA. 3 An inherent requirement of a particular job may include: The ability to perform the functions that are a necessary part of the job, Productivity and quality requirements in that particular job, The ability to work effectively in the team or company, and The ability to work safely.
Designed to further diversity in the workplace that is based on equal dignity and respect of all people, That reasonably accommodate people from designated groups to ensure that they enjoy equal opportunities and are fairly represented in the designated employer s workforce, To ensure the fair representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce, To retain and develop people from designated groups, and To implement appropriate training measures, including measures in terms of an act of parliament that provide for skills development. Section 20 of the EEA states that a designated employer must prepare and implement an employment equity (EE) plan which will go towards addressing EE in the workplace. What must an EE plan contain? An EE plan prepared by a designated employer must provide for AA measures to be implemented in terms of section 15(2) of the EEA. Importantly, where it has been identified that employees from designated groups are under-represented, you must include the following in your EE plan: The numerical goals your company will need to reach to achieve the fair representation of suitably qualified people 4 from designated groups within each occupational category and level in your workplace. There are still inconsistencies in how AA is applied It has been almost 17 years since the constitution was enacted and almost 15 years since the EEA came into being. What is of concern is the inconsistency in relation to the application of AA legislation in the workplace when candidates are appointed to a vacant position: In Solidarity obo Barnard v SA Police Services [2010] 5 BLLR 561 (LC), the Labour Court held that Barnard, who was employed by the South African Polices Services (SAPS), had been unfairly discriminated against because of her race, even though she received the highest assessment score. 4 According to Section 20(3) of the EEA, a person may be suitable qualified for a job because of one of - or combination of - that person s: 1. Formal qualifications, 2. Prior learning, 3. Relevant experience, or 4. Capacity to acquire, within a reasonable time, the ability to do the job.
What can we learn from the above case? The following principles emerged when the Labour Court analysed all the evidence in the above case: 1. The provisions of the EEA and an EE plan must be fairly applied taking into account the affected individual s right to equality and dignity, 2. The extent to which AA may be used to discriminate against individuals is limited by law, 3. There must be a logical connection between the provisions of the EE plan and the measures adopted to implement it, 4. Where a post cannot be filled by an applicant from an under-represented group because a suitable candidate cannot be found, you should not overlook a member of an over-represented group for promotion without a clear and satisfactory explanation, and 5. The efficient operation of the public service. The Labour Court s decision was taken on appeal to the Labour Appeal Court in SA Police Services v Solidarity obo Barnard [2013] 1 BLLR 1 (LAC). Here, the appellant claimed that the Labour Court erred by finding that Barnard had been discriminated against. The court s suggestion was that the reason why she was not appointed was that: - White females were over-represented and the appellant s appointment would not further representivity at her promotional level, - If AA is properly implemented, the right of members of particular groups to compete for vacant posts must be disregarded until demographic targets are reached, and - The National Commissioner ( NC ) had unrestricted authority to decide if and when exceptions should be allowed. The Labour Appeal Court found that the: Labour Court misinterpreted the AA measures by ordering that the implementation of these measures was subject to an individual s right to equality and dignity, The over-representativeness of white males and females is a powerful demonstration of the sinister consequences of South Africa s unhappy past: - White people were favoured over other races especially in the public service. - Advantage was perpetuated by the transfer of skills - some critical - to the same white race group to the exclusion of others, especially blacks. - The over-representivity of whites for the position that Barnard applied is a stark reminder of our past (and indeed the present) and yet another wake-up call to break decisively from these practices. - These are practices that can be effectively broken by embracing the restitutionary spirit of the constitution.
The Supreme Court of Appeal granted Solidarity special leave to appeal the Labour Appeal Court s decision and this matter will be heard before the SCA in due course. In the case of Solidarity obo MPN De Sampaio v City of Tshwane Metropolitan Municipality unreported JS950/11, 17 November 2011 (LC) it was ruled that EE should not have been applied when the Tshwane Municipality s deputy director position was filled: - De Sampaio, a white male, applied four times for the position in which he had been acting (in a temporary capacity) for three years. - He was never considered for the position because the municipality had implemented AA. - The position was left vacant and no suitable candidates were interviewed. - De Sampaio approached the Labour Court alleging that the municipality s actions amounted to unfair discrimination on the grounds of race and he further argued that the municipality s AA policy was not in line with the EEA. - The Labour Court ruled in favour of De Sampaio. The municipality was ordered to perform the following actions: o Shortlist De Sampaio for the vacant position, o Invite De Sampaio for an interview (with the interview process being in a fair and consistent manner which took De Sampaio s qualifications, experience, suitability into account but excluded EE considerations), and o If it did not appoint De Sampaio to the position, it had to provide Solidarity Union with reasons for its decision in writing. It is interesting to compare the above cases with a few earlier decisions In Stoman v Minister of Safety and Security and Others (2002) 23 ILJ 1020 (T), an application was made to the High Court (HC) to review and set aside a decision by the SAPS not to promote Stoman, a white male who was awarded the highest score among all individuals who applied for the position. This case considered the constitutional recognition of AA measures designed to protect and advance previously disadvantaged people or categories of persons: The HC held that the black population group had been disadvantaged by unfair discrimination and concluded that the aim was not to reward the black candidate Sethlare - who was appointed to the position applied for not as an individual but to advance the category of persons to which he belongs and to achieve fundamental equality in the SAPS as an important component in South African society. - Similarly, the HC held that the aim is not to punish or otherwise prejudice the applicant as an individual, but to diminish the over-representation which his group had been enjoying as a result of previous unfair discrimination. In the case of Harmse v City of Cape Town (2003) 24 ILJ 1130 LC, an employee (Harmse) who belongs to a designated group alleged that he was discriminated against because he was not shortlisted for a number of positions advertised by the City of Cape Town because of his race, political beliefs and lack of experience even though he was a suitably qualified employee from a designated group:
The respondent appointed two white males to three of the vacant positions that were advertised. The Labour Court came to the conclusion that AA was a right in the hands of an employee from a designated group and further stated that when an employer adopts an EE plan that regulates appointments and promotions, the employees may have a legitimate expectation that the employer will act in accordance with the EE plan. In the case of Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 6 BLLR 539 (LC) the applicant (Alexandre) who is a white male engineer, applied unsuccessfully for a promotion to a higher position. A coloured male, Mathys, was appointed: Alexandre contended that he was unfairly discriminated against on the grounds of race. He claimed that the successful candidate was far less qualified than he was and he was given the impression that he would be preferentially promoted. The Labour Court held that appointing a coloured male would achieve a preferable AA outcome. Regardless of if his race was a primary or secondary consideration, his appointment remedied the disadvantage he experienced in the employment context because he was classified as coloured under the previous apartheid dispensation. Our courts don t consistently apply and interpret AA measures Accordingly, in some instances the judges have adopted the approach that appointments in the workplace should not only be made according to AA measures and race. In other instances, the judges have adopted the approach that employers must ensure that AA measures override the entire recruitment or promotional process as this serves a national objective of rectifying the past imbalances in the workplace. Is AA creating discriminatory barriers within designated groups? Even more alarming is a recent trend that demonstrates a possible shift from inter-racial inequality to intra-racial inequality even within the designated groups. A case in point is Naidoo v Minister of Safety and Security JS 566/2011, 15 February 2013 (LAC): The applicant Naidoo - an Indian female - applied for a senior position as cluster commander with the SAPS. Naidoo was placed second on the shortlist. Motlhala (an African male), who scored the highest results, was recommended for another position. This then meant that Naidoo was automatically placed first on the shortlist. Her appointment would have enhanced EE as she is part of a previously disadvantaged group. The SAPS appointed another African male, Maswanganyi (who scored the fourth-highest result) to the position as they felt his appointment would address the under-representation of Africans on a national scale.
In this particular case, the SAPS had designed an EE plan that was not promoting equitable representation within each occupational level. It was contended that the very purpose of EE is to redress the effects of past discrimination suffered by members of the designated group. Its purpose is not to create new de facto employment barriers. The Labour Appeal Court ordered the SAPS to promote Naidoo and it was found that she was discriminated against on the grounds of her race and gender. A current case before the Cape Town Labour Court is February and Others v Department of Correctional Services (DCS) 368/2012 May 2012 (LC). This case has sparked public protest and media coverage: In this case, February (a coloured male who was acting in a position of senior state accountant for an extended period of time) was nominated as the best candidate for the particular position by an interviewing panel. On the grounds of its AA plan, the panel refused to appoint February because an African candidate had to be appointed. February stated that the only reason he was found unsuitable for the position was because he was a coloured male. The interviewing panel admitted applying the national demographics in the Western Cape and stated that coloured males were over-represented. February is currently arguing that the department s EE plan differentiates between members of designated groups on the basis of their race and sets targets that, if properly analysed, are nothing but a compendium of absolute quotas. The Labour Court has not handed down judgement in this case. The EEA certainly does not provide for unequal treatment of members from a designated group on the basis of degrees of disadvantaged suffered in the past within and between designated groups. What is required is a decision from the Constitutional Court on how to apply AA measures in the workplace.