Judgment could force rethink on present policy

Over the last few months there has been a public debate, be it a low key one compared to some others, developing around the need to reconsider the way in which affirmative action or employment equity is being implemented in the country. Considerable new momentum is likely to be injected into this debate by a landmark decision last week in the Labour Court that the refusal of an appointment to one of its members by the South African Police Service (SAPS) was both unfair and also not a rational method of implementing the government’s Employment Equity Plan.

While the trade union Solidarity, which assisted captain  Renate Barnard in bringing her case before the court, indicated that at least another nine cases were on the way the judgment might also have opened the way for potentially thousands of South Africans from minority groups to introduce claims against the state and some companies for race-based job-discrimination.

The judgment by acting judge Paul Pretorius could either serve to temper the harshness of existing affirmative action legislation or send the lawmakers back to the drawing board to try to close loopholes in the applicable law – which could prove difficult to reconcile with the dictates of the constitution.

While the debate on employment equity thus far has been dominated by economic considerations like the shortage of much needed skills, the Barnard case has now brought the constitutional prohibition of discrimination based on race, gender or creed sharply into focus.

The decision in the Barnard case was that the SA Police Services are required to appoint captain Barnard as a superintendant of the complaints investigation unit - the court having found that the SAPS had unfairly discriminated against her. The promotion is to take place retrospectively from 27 July 2006 and the SAPS was ordered to pay all her legal costs.

Judge Pretorius stated that in his view “the failure to appoint Barnard, coupled with the non-appointment of  either of the other two black and recommended candidates was not shown to be a rational method of implementing the Employment Equity Plan.”

The position Barnard repeatedly applied for – the first time in November 2005 – was never filled. Despite an interview-panel finding her the most suitable candidate, she was not appointed because the divisional commissioner was of the opinion the appointment would “aggravate the representivity of the section.”

When the post was again advertised in May 2006, she again applied. This time the panel recommended in a report to the national commissioner that she be appointed, stating: “She has proven competence and extensive experience at national level in the core functions of the post and was rated the highest by the promotion panel. She obtained an average rating of 85.33%.”

The office of the national commissioner, however again declined to appoint her informing the panel that: “Your recommendations do not address representivity.”

In what could prove to be direction-giving to future developments.

Judge Pretorius among others found that:

• The Employment Equity Act and Employment Equity Plan must be applied with due regard to fairness and the individual's constitutional rights to equality. It is no longer sufficient to simply set up numbers and leave it at that and due regard is to be given in each individual case to the circumstances surrounding that particular case. If the Employment Equity Act and Employment Equity Plan is applicable it should be open to flexibility;
• Because non-designated groups are adversely affected by equity plans this must be factored in against their rights to equality. In a case like Barnard it should be accepted that she has been adversely affected and that weighed up against the right to equality in reaching a decision;
• "The extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law." This is where there is going to be a clash between the two schools of thought  - those who believe it's a numbers game as opposed to those who claim that fairness must be factored in as has been the case with Barnard;
• Where a post cannot be filled by a designated group it must fall to other groups;
• There must be a rational connection between the Employment Equity Plan and the measures to implement it; and
• Service delivery must be factored in where appropriate.

The full judgment can be read at http://www.solmediafiles.co.za/mediakonferensies/2010-02-26/hofuitspraak.pdf