Vrydag, Oktober 5th, 2012
2012 saw its fair share of cases dealing with and interpreting the Employment Equity Act, specifically a designated employer’s duty to implement affirmative action measures and achieve equitable representation in the workplace.
In Public Servants’ Association obo Tlowana v Member of the Executive Council for Agriculture, the applicant employee applied for a vacant post, and was recommended by the selection panel, having been allocated the highest score of the candidates interviewed. The employer decided instead to appoint the second rated candidate, a female. In the list of recommendations, he was no. 1 while the fourth respondent was no. 2. There was a differential margin of about 2% between the two of them. The interviewing panel recommended his appointment.
The first respondent appointed the fourth respondent instead. The employee referred an unfair labour practice dispute relating to promotion. In the meantime, the fourth respondent was transferred to another position and the employer re-advertised the contested post which then had become vacant. Again, the employee applied for the post. He was recommended for and finally appointed at that post. He sought compensation for the delayed appointment. The matter came before the CCMA and the Labour Court on various occasions and then ultimately before the Labour Court on review. During the arbitration hearing, the issues in dispute were wider than they were on review. The applicant also challenged the applicability of the Employment Equity Act (“EEA”) in relation to the advertisement as the advertisement made no mention of the applicability of the EEA. The LC found the decision of the Commissioner on these issues to be reasonable and without a defect.
What the Court did look into is how the fourth respondent was appointed, and therefore how the EEA was applied. Evidence tendered by the employee was that the fourth respondent was not equipped with the knowledge of the PERSAL system. The PERSAL system was listed as a requirement for any candidate who wanted to apply for the post in question. The employee made an allegation in his testimony that the short-listing process involved the picking up of people that were favoured even though they did not meet the set requirements. The employee therefore alleged that the employee who was eventually appointed did not comply with the inherent requirements of the job.
The court therefore looked at the requirements an employer had to comply with when appointing and employee, and found the issue before the Court to be whether in appointing the fourth respondent the employer acted rationally and applied its mind appropriately to the considerations that were essential in applying the provisions of the EEA. The court again looked at the decision in Minister of Finance & another v Van Heerden, and found that what followed from this case is that when affirmative action is applied one should not act irrationally as there are guiding principles that must be followed. In South African Police Service v Zandberg & others, Pillay J had the following to say:
“Opening the post to all groups does not mean that a higher standard applies when assessing suitability and merits for posts for non- designated groups than when posts are restricted to designated groups. Applying a higher standard for non-designated groups implies that a lower standard is use to appoint persons from designated groups. By implication less suitable and less meritorious people fill posts reserved for designated groups. That cannot be the intention or the letter and spirit of the EEA Equality means fairness and justice, to the candidate and to the people they serve. Fairness and justice cannot prevail if candidates who are less than best, who are less suitable and less meritorious are appointed.”
In Stoman v Minister of Safety and Security & others the following appears:
“I am respectfully in agreement with the learned Judge in the Public Service Association case that the police or practice which can be regarded as haphazard, random and overhasty, could hardly be described as measures designated to achieve something . . . In order to honour constitutional ideas and values, and to strive to truly move towards the achievement of a substantive equality, proper plans and programs must be designed and put into place. Mere random and haphazard discrimination would achieve very little, if anything, if anything, and might be counter-productive.”
In this case the Court found that it needs to investigate whether the appointment of the fourth respondent was or was not done in some haphazard, random or overly hasty manner. It had become common cause that the fourth respondent was not equipped with one of the essential requirements that were listed in the advertisement. It is clear, therefore, that even the fact that she was short-listed was an attribute belonging to a haphazard and random manner. The Court did not fault the decision to have affirmative action to be implemented and that appropriate steps had to be taken to ensure that rationality prevailed in the selection of a proper candidate. The formula adopted or proposed by the Minister was not irrational. It was a formula that was well conceived. The problem, the Court found, was that someone who had no ability to work with PERSAL system had escaped detection in an earlier stage. The fourth respondent was not supposed to have been short-listed in the first place because she did not meet the very minimum requirements.
In Solidarity obo Louw v South African Police Service & others the employment equity plan of the employer came under scrutiny. An employment equity plan prepared in terms of subsection 1 must comply with certain minimum requirements as set out by the EEA. For purposes of the EEA, a person may be suitably qualified for a job as a result of any one of, or any combination of the person’s formal qualifications; prior learning; relevant experience; or the capacity
to acquire, within a reasonable time, the ability to do the job. Therefore, when determining whether a person is suitably qualified for a job, an employer must review all factors listed in subsection (3); and determine whether that person
has the ability to do the job in terms of any one of, or any combination of those factors. In making a determination under subsection (3), ‘an employer may not unfairly discriminate on a person solely on the grounds of lack of relevant
The applicant employee in this case, a White male colonel in the Visible Policing Unit, applied for the post of head of the unit’s custody and complaints management section at the level of senior superintendent. He was rated highest by the selection panel, with an Indian female and an African male being ranked second and third, respectively. The application, based on unfair discrimination, emanates from the decision of the employer to appoint the fourth respondent, an Indian female.
The issue in dispute was to decide whether or not the respondents’ decision to prefer the fourth respondent to fill the post and to reject the recommendation of the interview panel was in compliance with the provisions of the equity plan in force at the time. If the decision was not in compliance with the plan, it follows that the decision is bad and had to be set aside.
The specific provision of the EEA that the applicant wishes to invoke is section 20 which provides that a designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce. According to the applicant, the SAPS did not comply with its own equity plan because the target on representivity in relation to Indian females had already been achieved. The employer submitted that at the time the decision was made, White males at Level 12 were over-represented by nine. The Equity Plan required SAPS to move towards a fifty (50) percent representation of women at higher levels, such as level 12. The fourth respondent is a woman falling within this category.
On the question of the fifty percent goal by the first respondent, the employer’s witness testified that it did not mean that men would never be appointed. It only took into consideration that there were more males already appointed and appointing the applicant would have worsened the situation. Moreover, there was only one Indian female on the relevant band and she was suited for the position as she had the right qualifications.
The Court found that the claim by the applicant that the equity plan of the employer was not complied with is based on what he perceives as discrimination against him based on his race and gender. To deal with his submissions in this regard, one has to put his case in the context of the EEA and the Constitution of the Republic of South Africa Act, 1996 (“the Constitution”). Both the Constitution and the EEA provide for the equity and non-discrimination in the workplace. The EEA provides for suitably qualified people from designated groups to have equal employment opportunities and be equitably represented in all occupational categories and levels in the workplace of a designated employer (section 15).
The Court found that the National Selection panel considered the gender of the fourth respondent in their appointment and not the race. The Court considered whether this went against the spirit of the SAPS’s equity plan as alleged by the applicant. Was the decision unfair and based on his race and gender? To answer this question, the Court looked at the provisions of section 9(3) of the Constitution which stipulates that the State may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, stipulated in the section. The applicant was discriminated against on the basis of his race and gender, however, was it is fair or not? Section 9(5) of the Constitution determines that discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The Court found that the answer to this question lies in the demographics of the SAPS. In a scenario where the representivity of males is 71 percent as opposed to 28.8 percent females, it is inconceivable that yet another male had to be appointed to the position currently occupied by the fourth respondent. The Court found that the present case is distinguishable from Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC) in that in the Barnard case no-one was appointed whereas in the instant case a competent and suitably qualified woman was appointed. It was not, as in the Barnard case, a matter of the applicant not being appointed and the position left vacant.
The Court then continued to ask two further questions regarding the appointment of the fourth respondent. The questions are: firstly, did the appointment of the fourth respondent “fly in the face” of the service delivery imperatives of the SAPS? Secondly, Was the SAPS prejudiced in its mission of having a visible police force by the appointment of the fourth respondent? The answer to both questions has to be in the negative as a member of an under-represented gender was appointed.
Another crucial point to consider is whether the appointment of the fourth respondent constituted a gallop towards the 50 percent female representivity goal of the SAPS equity plan at the expense of the applicant. The appointment of one Black (Indian) woman would not result in the scales being balanced between the sexes and races. White males are far over-represented. This cannot be said of Indian women. The demographics in the relevant category remain skewed in favour of White males even after the fourth respondent’s appointment.
Did the employer acted irrationally by not applying its mid to the matter? The Court found not. Unlike the Willemse v Patelia NO & others  2 BLLR 164 (LC) where the Court concluded that the Acting Director-General had failed to apply his mind, in the present case there were deliberations right up to the highest echelons of the SAPS regarding the fourth respondent’s appointment. In the Willemse case, the court concluded that the employer had applied affirmative action in an arbitrary and unfair manner. In the present situation both the applicant and the fourth respondent were evaluated holistically and a just and equitable decision was reached.
The Court also distinguished this case from the case of Du Preez v Minister of Justice and Constitutional Development and others (2006) 27 ILJ 1811 (SE) [also reported at  8 BLLR 767 (SE)] on the basis that the applicant in the Du Preez case was much more experienced than his competitors. This distinguishes that case from the instant one as in the instant case the fourth respondent and the applicant are both very experienced. Even the scores at the interview are very marginally apart.
The applicant also argued that that his non-appointment impaired his dignity because his personal circumstances were not dealt with and his application was not properly dealt with. He was overlooked for promotion for 15 years, but this can hardly be categorised as undignified, said the Court.
In the case of Van Dyk v Kouga Municipality the Court considered the question whether the employee appointed in the position was a suitable qualified employee. The applicant worked for the respondent municipality and then resigned. Six years later, the position of platoon officer in the fire department was advertised and he applied as an external applicant. He claimed that the respondent’s HR manager had told him that he would be given the job because he was the only candidate with the necessary qualifications. Two other candidates were shortlisted as well and a “coloured” woman was rated slightly higher than the applicant, and was appointed. The applicant alleged that neither of the other two candidates should have been shortlisted as they both lacked the necessary qualification, that he had been discriminated against on the basis of race and/or sex, and that the selection panel was biased. One of the requirements for the job listed in the advertisement was a graduate certificate issued by the South African Fire Services Institute. Of all the candidates shortlisted, only the applicant had this qualification when the interviews took place. According to the applicant the other candidates should not have been appointed as they do not have one of the important listed qualifications for the post, namely the SAESI Graduate Certificate. The applicant then claimed unfair discrimination based on his race and gender.
The employer’s explanation for shortlisting the female employee was that even though she did not hold the graduate certificate qualification required by the post it was believed that she had the capacity to acquire the ability to do the job within a reasonable time and she has obtained the graduate certificate since her appointment.
The Court found that an implication of following the provisions of section 20(3)(b), (c) and (d) of the EEA, was that the selectors compiling the shortlist only needed to be satisfied that the candidates had the capacity to acquire the ability
to do the job, which does not necessarily mean attaining a formal qualification. In a case where the post in question, by definition, requires a candidate to have a particular qualification, then the employer’s reliance on the provisions of section 20(b)–(d) to shortlist a candidate would probably not be possible, for example, in the case of filling of a doctor’s post. However, in this instance, although the qualification was listed as one of the requirements of the post, the Court was not referred to any legal requirements stating that a person may only be appointed to a platoon officer’s post if they already have the graduate certificate qualification.
The Court found that, at the time of the interviews, the applicant was the best qualified candidate. However, the female’s shortlisting was done on the basis that she had the capacity to acquire the minimum qualification, and in the interviews the panel clearly did not regard her as unsuitable. The reason for her shortlisting in terms of the criteria under section 20(3)(b), (c) and (d) of the EEA was legitimate, in the absence of any legal pre-requisite that she had to have the graduation certificate to perform the platoon officer’s job.
It seems that in this case the Court was prepared to look beyond the employer’s set list of inherent requirements of the job and found that where there is no legal requirement for a qualification, the employer can overlook it and appoint an employee on the basis of the capacity to acquire the qualification within a reasonable period of time.
In SA Police Services v Safety and Security Sectoral Bargaining Council & others the Court looked at the test for review but also confirmed and looked at SA Police Service v Zandberg & others where it was held that employment
equity means fairness and justice to the candidate and to the people they serve. Fairness and justice cannot prevail if candidates who are less than the best, who are less suitable and less meritorious are appointed.” The Court found that given the fact that the applicant in this case did not meet the relevant experience requirement and that was indicated as the reason why he was not regarded as a suitable candidate, the Court held that the equity plan had no, if any bearing on the refusal of the Divisional Evaluation Committee Meeting to recommend the third respondent for the position. After all, it would create an intolerable position if a person had to be promoted purely because there was a “numeric deficiency” pertaining to his specific gender and race group. It also would have been against the spirit and the proposed way to deal with the matter as set out in the Equity Plan of the employer. The Court confirmed that given the fact that the third respondent did not meet the requirements pertaining to experience, seen in context with the fact that he was not guaranteed the promotion even if he achieved the highest score and that no legitimate expectation was created that he would be appointed, it remained the prerogative of the employer to not appoint any applicant and to advertise the position afresh.
 (2012) 21 LC 1.11.33 and also  8 BLLR 805 (LC)
  12 BLLR 1181 (CC) para .
  2 BLLR 194 (LC) at 198E–G.
 2002 (3) SA 468 (T) at 480A–D [also reported at  JOL 9408 (T)]. There are various other relevant decisions that pertain to the consideration that should be put in place when an affirmative action stance is taken. See in this respect Department of Correctional Services v Van Vuuren  11 BLLR 1132 (LAC).
 (2012) 20 LC 6.12.2 and  6 BLLR 637 (LC)
 (2012) 21 LC 188.8.131.52, also reported in  9 BLLR 952 (LC)