Employment law update – Employment equity groups – who bears the onus?

November 1st, 2012

Gebhardt v Education Labour Relations Council and Others (LC) (unreported case no C820/08, 7-9-2012) (Steenkamp J)

By Moksha Naidoo

For purposes of meeting employment equity targets, does the employer or the employee bear the onus to prove that the employee forms part of a designated group as defined in the Employment Equity Act 55 of 1998 (EEA)?

The court in this case had to identify and refer to specific persons in accordance with how they were racially classified under the apartheid regime.

The applicant, a ‘white’ female educator, contracted a disease while employed by the third respondent, the Western Cape Education Department (the department). The applicant worked at Boland College, which fell in the Further Education and Training Certificate (FETC) sector. As a result of her illness, the applicant suffered a total loss of hearing. The applicant indicated her disability in a survey form, and further informally advised the chief executive officer and vice-rector of Boland College of her hearing impairment.

In the same year, the applicant applied for a promotion to the post she had been acting in for the past three years. She indicated her hearing disability on the application form.

Together with two others, the applicant was shortlisted for the post and invited to attend an interview before a panel. Despite the panel recommending the applicant for the post, the department appointed another candidate, Van Voore, a ‘coloured’ female educator.

The applicant referred an unfair labour practice dispute to the first respondent bargaining council, alleging that the department had acted unfairly by not appointing her.

During arbitration, the department’s employment equity coordinator testified that both the applicant and Van Voore were eligible for the post, which required the department to appoint the candidate who best met its equity targets. The employment equity coordinator added that, in terms of these targets, coloured female educators (as opposed to white female educators) were under-represented in the FETC sector and this resulted in Van Voore being appointed over the applicant.

The second person to testify on behalf of the department was the college’s human resources manager, who testified that the applicant scored considerably higher at the interview stage compared to Van Voore. He further stated that before the appointment was made, he advised the employment equity coordinator of the applicant’s disability. The employment equity coordinator said he would investigate same and revert to the human resources manager.

The arbitrator found that the basis for the department’s decision lay in its equity policy and appointing Van Voore over the applicant in line with its equity targets was not unfair. With regard to the applicant’s disability, the arbitrator held that an employee bears the onus of establishing he falls within a specific designated group that entitles him to be considered when an employer seeks to achieve its equity targets. On the facts, the arbitrator found that the applicant had failed to prove her disability to her employer and, as such, there was no obligation on the department to consider the applicant’s alleged disability when filling the post in question.

The arbitrator accordingly dismissed the applicant’s claim.

On review, the applicant made two arguments for the award to be reviewed and set aside, namely:

  • The arbitrator failed to consider the fact that the employment equity coordinator, having been informed by the human resources manager of the applicant’s disability, failed to investigate same as he had undertaken to do.
  • The arbitrator misunderstood which party bore the legal onus to prove an employee falls within a designated group.

Steenkamp J upheld the applicant’s first argument. It was clear, according to the court, that on the common cause facts the arbitrator did not apply his mind to the merits of the matter. It was not in dispute that the applicant indicated her disability in her application form. Further, she advised the human resources manager of her disability and he, in turn (and as a result of the panel recommendation), informed the employment equity coordinator, who said he would investigate and revert to the human resources manager but failed to do so. The court held that the arbitrator failed to take these material concessions made by the department’s witnesses into account. Further, the department conceded that any consideration of the applicant’s disability would have had a significant impact on its choice as to which candidate to appoint.

On the second ground, the court said the following:

‘The arbitrator assumed that the applicant had to not only inform her employer that she was disabled, but that she had to provide proof thereof.

One only needs to consider the position of other designated groups to conclude that this assumption is irrational. The Population Registration Act [30 of 1950] was repealed decades ago. The citizens of a democratic South Africa are no longer classified according to race. How, then, would a person who is classified as “coloured” and who is therefore given preference for appointment – such as Ms van Voore – provide proof of that categorisation?’

The court also referred to the following provision in the EEA:

‘Every designated employer must, in order to achieve employment equity, implement affirmative action measures for people from designated groups in terms of this Act.’

In this respect, the court held: ‘The duty is clearly on the employer to effectively implement affirmative action measures for people from designated groups, such as people with disabilities.’ The court also referred to s 19 of the EEA, which provides that the employer must collect information and conduct an analysis of its workforce in order to determine the degree of under-representation of people from designated groups in various occupational categories and levels in its workforce.

In conclusion, the court held: ‘[I]t is clear that the duty is on the employer to gather … the disability of a person who alleges that she is a member of that designated group. By assuming the contrary, the arbitrator misconstrued the entire legal basis of his finding. On this ground as well, the award falls to be reviewed and set aside.’

In addition, the dispute was remitted to the bargaining council to be heard afresh before another arbitrator.

The department was ordered to pay the applicant’s costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

These articles were first published in De Rebus in 2012 (Nov) DR 56.