Constitution of the Republic of South Africa, 1996 (“Constitution”)
Section 9 of the Constitution affords everyone the right to equality and provides that everyone is equal before the law and has the right to equal protection and benefit from the law. In addition to this, section 9(4) provides that no person may unfairly discriminate directly or indirectly against anyone on one or more of the following grounds – including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. However, section 9(5) states that discrimination on one (1) or more of the grounds listed above is unfair unless it is established that the discrimination is fair. For this reason, not all discrimination will necessarily amount to unfair discrimination.
Employment Equity Act 55 of 1998, as amended (“EEA”)
The EEA promotes, amongst others, the constitutional right of equality as stipulated above. Its purpose is to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and implementation of affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce. Section 5 of the EEA places a positive obligation on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.
Section 6(1) of the EEA further provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds listed in section 9(4) of the Constitution. However, according to section 6(2) of the EEA, it is not unfair discrimination to:
The provisions of the EEA do not only apply to employees. In fact, section 9 of the EEA explicitly provides that for purposes of section 6, the term “employee” includes an applicant for employment. This means that an employer’s duty to prevent and prohibit unfair discrimination, in particular, applies to employees and job applicants alike.
The Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices also provides valuable guidance on how to eliminate unfair discrimination and implement affirmative action measures in a manner that is consistent with the purpose and object of the EEA. Following the Code, recruitment and selection processes should be conducted fairly and without unfair discrimination.
In the case of Solidarity obo Erasmus v Eskom Holdings SOC Ltd (C1001/18) [2024] ZALCCT 18 (24 May 2024), Solidarity, on behalf of its member, Mr. Erasmus (“the Applicant”) referred an unfair discrimination dispute to the Labour Court (“LC”) for adjudication.
The dispute arose after Eskom SOC Ltd (“the Respondent”) failed to appoint the Applicant to a vacant position because the Applicant was not an African person. According to the Respondent, it was preferred that the person appointed to the position be “an African male or female of any race”. The Applicant had been employed by the Respondent since 1988 and previously held a position as a Project Manager before being transferred to the Senior Advisor Outage Coordinator position which he held since 2017. Despite the Respondent meeting the minimum requirements for the position, being shortlisted, interviewed and nominated by the Senior Manager for Outage Support and Execution, the Respondent declined to appoint the Applicant. It contended that the Applicant misrepresented his race when he applied for the position in that he described himself as “African” on the application form. According to the Respondent’s Human Resource Business Partner, the Applicant would not have been shortlisted to begin with had he marked that he was a white male. The Respondent was of the view that its failure to appoint the Applicant was in line with its Employment Equity Plan and requirements and did not create a barrier to white males being appointed into higher positions. The Respondent’s rationale was that candidates from non-designated groups would have been considered in a second round of advertisements if no suitably qualified candidate from a designated group was found. However, the position the Applicant applied for remained vacant as no suitable candidates from a designated group could be identified.
In the LC, the Applicant submitted that the Respondent’s divisional Employment Equity Plan was not signed off and testified that as an employee of the Respondent, he was not aware of the practice of not shortlisting a member of an over-represented group. He averred that he only learned that white males could not be shortlisted during the court proceedings. He further testified that it was not his intention to mislead the Respondent when he indicated that he was African as it reflected his “stance” or beliefs and that the issue was not raised during the interview process, only in the LC. The Applicant also testified that the sole reason for him not being appointed into the vacant position was because of the colour of his skin and that this amounted to unfair discrimination on the basis of race and was an absolute barrier to non-designated groups.
In the end, the Labour Court found that the Respondent unfairly discriminated against the Applicant. The LC held that:
The LC therefore ordered that the Applicant was unfairly discriminated against and that the Respondent’s practice of not shortlisting members of non-designated groups for advertised posts amounts to an absolute barrier and is not an affirmative action measure as contemplated by the EEA. The Respondent was further ordered to take remedial steps to ensure that the said practice ceases and to pay compensation to the Applicant in an amount equal to eighteen (18) months of his salary at the time that he applied for the post in question.
Effects on Job Applicants
Job applicants are afforded equal protection insofar as the EEA is concerned. Employers therefore have a duty to ensure that job applicants are not unfairly discriminated against on any of the listed grounds, irrespective of whether such discrimination is direct or indirect. It is also important to note that affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer. However, this does not mean that employers may implement policies or practise which amount to an absolute barrier for non-designated employees and job applicants.
Where an employer’s policies or practices, including Employment Equity Plans, are not consistent with the purpose of the EEA or based on an inherent requirement of the particular job, employers face paying the price for their non-compliance with the EEA.
Andrea Miguel – Candidate Attorney
JUSTINE DEL MONTE & ASSOCIATES INCORPORATED
