The employee in Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality (JS523/2014) [2016] ZALCJHB 155 (Solidarity) was a white male who had been shortlisted for a particular position by his employer. The Acting Executive Director: Human Resource Management (HR Director), approved the shortlist but made his approval subject to the following condition: ‘only candidates from a designated group should be shortlisted and interviewed.’ The position was re-advertised and the employee was not shortlisted a second time.

The employee claimed that the employer had unfairly discriminated against him on the grounds of his race and gender. The employer justified the HR Director’s conduct with reference to its staffing policy. The employer could not rely on an Employment Equity Plan (EE Plan) to justify its conduct because its EE Plan had expired and a new EE Plan had not yet been implemented.

The employer conceded in its evidence that it had discriminated against the employee. The consequence of this was that the onus was on the employer to prove that the discrimination was fair.

Discrimination is permitted if it is done in accordance with an affirmative action measure, as defined in s15 of the Employment Equity Act, No 55 of 1998 (EEA). Therefore, the Labour Court had to decide whether or not the employer’s staffing policy qualified as an affirmative action measure. If so, the employer’s discrimination against the employee would be fair and the court would have to decide whether or not the staffing policy was applied fairly.

The court noted that the HR Director made the condition based on workplace profile statistics reflected in a table on the form submitted to him for approval. The numbers on the form gave the HR Director the impression that ‘too many’ white males were shortlisted. The HR Director conceded in his evidence that he did not consider any numerical targets with which he could have compared the white male representation, nor did he consider ‘whether the broader representativity was relevant to the shortlisting of candidates for the [particular] position in [the] specific department’.

The Labour Court held that an affirmative action measure must be capable of measurement and being monitored. Equality, according to the court, ‘presupposes a measurable result’. The court held that the staffing policy did not comply with the EEA because it does not provide for numerical goals set in accordance with the economically active population. Furthermore, the court held that the staffing policy is inflexible in that it does not allow for exceptions or deviations in certain circumstances. In light of this, the staffing policy did not comply with the EEA.

The Labour Court found that the employer had unfairly discriminated against the employee.

The court noted that the employer did not lead evidence to show that the appointment of the employee in the position he was initially shortlisted for would not adversely affect the goals, targets and objectives of the employer’s new EE Plan, (which had been implemented subsequent to the recruitment process wherein the employee took part). Thus, the court ordered the employer to appoint the employee in the position he was shortlisted for.

Employers should ensure that they act in accordance with workplace equity policies and plans which comply with employment equity legislation.

Written by Hugo Pienaar, Director and Roxanne Bain, Candidate Attorney in Cliffe Dekker Hofmeyr's Employment Practice