Employment law update – Affirmative action

September 1st, 2013

By Talita Laubscher and Monique Jefferson

In Naidoo v Minister of Safety and Security and Another [2013] 5 BLLR 490 (LC), the respondent had an employment equity plan (the plan) in place that provided for rigid targets based on the assumed demographics of the country as reflected in the 2001 census report. Although the census report reflected that 51% of the country was made up of women, the plan only set a 30% target for representation of females at the time. Furthermore, the plan contained a formula to be applied to determine numerical targets that created a ranking order, with African males being the most favoured. The effect of the plan was that African males were advanced in the workplace to the detriment of other categories in the designated groups.

Naidoo, an Indian female police officer, applied for the position of cluster commander: Krugersdorp. Following assessments, Naidoo received the second highest score. The candidate with the highest score was recommended for another cluster commander position, and Naidoo was recommended for appointment to the position of cluster commander: Krugersdorp because her position would address ‘gender equity’. The third-rated candidate for the position was A du Bruin and TS Maswanganyi, an African male, was rated fourth.

The recommendation to appoint Naidoo was, however, not accepted by the national selection panel, inter alia, on the basis of the inherent requirements of the job, the experience of the candidate in the environment, the fact that it would not enhance employment equity, and that it would not be consistent with service delivery objectives. The national panel was further of the view that there had been bias on the part of the provincial panel and thus the assessments carried out by the provincial panel were largely disregarded. Instead, the national panel decided that Maswanganyi had to be appointed.

Naidoo subsequently lodged a grievance, which was not addressed to her satisfaction, and she then instituted proceedings in the Labour Court (LC), contending that she was unfairly discriminated against since the plan created an absolute barrier to the advancement of females and the way in which the plan was applied, was arbitrary and unfair. The respondent argued that the appointment was not entirely dictated by the plan and it was entitled to take affirmative action measures consistent with the purposes of the Employment Equity Act 55 of 1998 (the EEA).

The LC, per Shaik AJ, noted that, in general, appointment decisions fall within the prerogative of management but that this prerogative is constrained by the law. Courts may therefore interfere with the exercise of this prerogative where

  • it is exercised irrationally, capriciously or arbitrarily;
  • amounts to unfair discrimination; or
  • where the decision-makers fail to apply their minds.

The court noted that the EEA prohibits unfair discrimination but provides that it is not unfair to implement affirmative action measures whereby members of designated groups are preferred to achieve substantive equality. It accepted that the plan targeted persons from designated groups. However, the court found that it also created barriers that undermined the purpose of achieving a diverse workforce broadly representative of the South African community. Therefore, while the attainment of substantive equality and equitable representation might require groups within the designated category to be advantaged over others, this must always comply with the requirements of the Constitution.

In the court’s view, the use of national demographics was in conflict with the EEA, which requires goals to be based on the proportion of the economically active population who are suitably qualified. The effect of the formula in the plan to determine the numerical targets to be reached was that it made provision for the appointment of Indian females at lower levels, but it excluded Indian females entirely from higher levels. The distribution of Indian females at level 14 at the time was zero and the ideal distribution was zero, meaning that it was impossible for Naidoo and other Indian females to progress to level 14 and beyond.

The respondent argued that Africans were under-represented while the ideal of zero female Indians had already been achieved. However, the manner in which the targets were calculated would always produce a zero target for Indian females, which created an absolute barrier for Indian females.

Shaik AJ held that, in many respects, the numerical targets in the plan were quotas rather than targets. As the quota had been satisfied in the case of Indians, they were regarded as being over-represented and thus completely excluded from consideration. This did not create equitable representation within each occupational category and level as required by the EEA. Furthermore, the plan did not accord with s 9 of the Constitution as all groups other than African males would be discriminated against until the target in respect of that group had been achieved. This created a ranking order between members of designated groups, which is not provided for in the EEA.

Considering the basis on which the national panel rejected Naidoo’s recommendation for the post, the court found that there was no basis to conclude that Naidoo was incapable of performing the duties of the role concerned as she had the ability, potential, qualifications and experience to function in the position. The court accordingly rejected the respondent’s argument that the appointment of Maswanganyi was based on the inherent requirements of the job. The court also rejected the argument that Maswanganyi’s appointment was based on his ability in comparison to Naidoo’s ability and that the decision was based on the need for service delivery.

The overall effect of affirmative action measures in the plan was therefore severely limiting to women in general, in particular to Indians and Coloureds. The court held that no one group within the designated group should be preferred to such an extent that it results in disadvantage being suffered by other categories in the designated groups, since this has the potential for inter-group contestation and may create a new pattern of advantage.

In the circumstances, the court held that Naidoo was unfairly discriminated against and the court ordered her retrospective appointment to the position of cluster commander, together with payment of the difference in remuneration that she would have received had she been appointed instead of Maswanganyi. Compensation equal to 12 months’ remuneration was also ordered, as well as costs.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2013 (Sept) DR 50.