Promotions and employment equity: balancing competing claims
The need to act fairly in all circumstances, especially in relation to employee promotions and meeting employment equity obligations is a fine line. Even so it is surprising that so few cases have been reported regarding the inherent tension between the unfair labour practice definition relating to promotions and affirmative action measures. These measures are designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer. Overall, the majority of those cases, which have been reported, relate to promotions within public sector bodies, such as Eskom, SAP, Transnet & Spoornet. It is not helpful to draw any conclusions from these cases especially in light of the general failure of the private sector to pro-actively undertake affirmative action measures.
2. The LRA and Employment Equity Act
The relevant provisions of the Labour Relations Act and Employment Equity Act that have bearing on the issue of promotions and employment equity are:
2.1 The unfair labour practice provision on promotions
'Unfair labour practice' means any unfair act or omission that arises between an employer and an employee involving-unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
2.2 Affirmative action measures
Affirmative action measures implemented by a designated employer must include
measures designed to further diversity in the workplace based on equal dignity and respect of all people; . (4) Subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.
2.3 Prohibition of unfair discrimination
No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.
It is not unfair discrimination to:
(a) Take affirmative action measures consistent with the purpose of this Act: or
(b) Distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
3. Relevant case law
# SAPU obo Lotter v SAPS (CCMA)
Challenge in terms of section 15(4) of the Employment Equity Act
Lotter was employed at a police station where the post of captain had been classified as available to applicants from designated groups only. This was part of a broader initiative whereby all posts in the Western Province were divided on a 70/30 % basis, 70% of posts being allocated to applicants from designated groups.
The applicant argued that this constituted an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups in terms of section 15(4) of the Employment Equity Act.
The arbitrator held this was not the case in that 30% of posts within the Western Cape were allocated to applicants from non-designated groups. It was just that at the particular station where the applicant was situated was allocated to designated groups only. Lotter could apply for vacancies at other stations. Secondly, the arbitrator held that on the basis of public policy the SAPS policy was not unfair and that Lotter was not unfairly discriminated against.
# Utatu v Transnet Limited (AMSSA)
Challenge in terms of unfair labour practice definition
When the applicants, both white males, applied for vacant posts, they were declined. The positions were re-advertised to secure candidates from designated groups. The applicants had been assured that their applications would be given serious consideration.
The arbitrator in this instance held that the company had departed from its policies and procedures and had not given serious consideration to the applicants' applications. The company was ordered to promote one of the applicants to the vacant post.
# Coetzer & 11 others v Minister of Safety and Security (Labour Court)
Unfair discrimination claim in terms of S 6 of the Employment Equity Act
Interestingly this case follows SAPU obo Lotter v SAPS (CCMA) in that it once more addresses the 70/30 % ratio. The guideline was to the effect that 70% should be allocated for the designated group and 30% for the non-designated group. A committee appointed to consider the advertisement of the posts for the Forensic Science Laboratory of the SAPS recommended that 68% of the posts be advertised as non-designated posts and 32% as designated posts.
Senior management referred the recommendations back to the committee and instructed them to revise the ratio between designated and non-designated posts. The committee was reminded that the Employment Equity Plan (the "EEP") desired a 70/30% ratio of members in the SAPS by 2001 (70% being for the designated group).
The changes were effected and 70 posts were advertised; 63% were for the designated members; 37% were for non-designated members. This translated to 44 posts in the Lab for the designated group and 26 for the others. About 28 of these 70 posts were for promotion to captain in the explosives unit. The applicants, all white males and 12 in number applied for the position of captain. The Commander of the Lab, Director Joubert, requested that members of the non-designated group fill at least 17 of the 20 unfilled posts in the explosives unit.
In presenting its case the respondents produced their employment equity plan. Judge Landman noted the following in this regard:
"It is therefore unnecessary for me to express any concerns which I may have about this document. An employment equity plan is, of course, relevant because it contains the affirmative action measures which may be used to justify discrimination."
Importantly, and a fact often overlooked, is that since SAPS is a designated employer, it can rely on the provisions of S6 (2) read with S 15 of the Employment Equity Act.
The Court upheld the argument of the applicants, requiring them to be promoted to the position of captain. The Court held that:
"The evidence led shows only that the National Commissioner was concerned about representivity. Clearly this was a priority and it cannot be questioned. But was it, in view of the absence of a specific plan and a rational consideration of the need for the explosives unit to be efficient, reasonable and rational not to consider or to reject the applicants for promotion to the designated posts in the second round? The evidence placed before me show that it would have reasonable and rational to make these appointments .. But their uncontradicted evidence must weigh heavily in evaluating the balance between the dictates of representivity and efficiency, in the micro, but important, explosives unit."
"First there is no specific affirmative action plan for the explosives unit. This deficiency would not have been of much significance had the EEP made provision for addressing "all the dynamics and cater for specific needs and unique circumstances" of highly specialised units pending the completion and incorporation of, in this case, an equity plan for the Lab."
"The second, and equally important aspect is that the National Commissioner's refusal to promote the applicants was based purely on the imperatives contained in the EEP to promote representivity. His decision overlooked, at least on the evidence presented at the trial, a consideration of the constitutional imperative that the service maintains its efficiency. On an overall conspectus, the National Commissioner should have been alert to the fact that extensive affirmative action measures, which had been implemented, were insufficient, at this stage, to address the vacancies and operational needs of the explosives unit."
"The second issue relates to the remedying of the failure to give effect to s 205 of the Constitution ("National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces."). In fashioning a remedy for a case of unfair discrimination within the State sector, it is not sufficient to only consider the circumstances of the grievants. Where the discrimination, as in this case, affects the ability of the police service to render an efficient service to protect the community, a remedy restricted to monetary compensation would not be appropriate. The remedy must be one, which addresses the interests and benefits the South African people. An order for damages or compensation is not one, which would be appropriate. The promotion of the applicants would, in my view, be the most appropriate remedy and be one that is just and equitable.
The Coetzer v Minister of Safety and Security case brings a measure of sense to the blind pursuit of employment equity targets in the public sector, adding that, in specific circumstances, the efficiency and effectiveness of the public service are equally important requirements as is representivity.
The Constitution does not prescribe how the two imperatives (efficiency vs representivity) are to be balanced but the balance must be a rationally one. Nor are they necessarily competing objectives.
The relationship between the need for affirmative action and the need for an efficient public service including a police service has been debated in Public Servants Association of South Africa and Others v Minister of Justice 1997 (3) SA 925 (T) and Stoman v Minister of Safety and Security and Others 2002 (3) SA 468 (T). In the latter judgment, Van der Westhuizen J, had the following to say:
"As far efficiency is concerned, I am respectfully of the view that the requirement of representivity is often linked to the ideal of efficiency. A police service, for example, could hardly be efficient if its composition is not at all representative of the population or community it is supposed to serve. This view may depend on how one perceives efficiency, of course... To summarise some of the above: Some tension may in certain situations exist between ideals such as efficiency and representivity, and a balance then has to be stuck. Efficiency and representivity, or equality, should, however, not be viewed as separate competing or even opposing arms."
These considerations (of efficiency and representivity) are not available to disputes in the private sector (since they are reliant on the constitutional requirements relating to the provision of public services). In these instances, the CCMA and Labour Court's approach tend to be based on whether the company is firstly a designated employer and can claim protection under section 15 of the Employment Equity Act, if it has a clear employment equity plan in place which addresses the appointment and promotion of candidates, whether such plans are rational, and whether it has adhered to its own policies and procedures.
Individuals wishing to challenge such policies may either proceed in terms of the S186 of the Labour Relations Act, or section 6 or 15(4) of the Employment Equity Act. Clearly, Company's employment equity plans will be critical in substantiating its promotions and appointments policies.
Employment Equity plans which set out absolute barriers to the prospective or continued employment or advancement of people who are not from designated groups would immediately fall foul of the unfair discrimination provisions of the Employment Equity Act.
Amongst designated groups, the Employment Equity Act does not require that one designated group receive preferential treatment over other designated groups.
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