The Constitution of the Republic of South Africa provides the foundation for equality and against unfair discrimination. The Employment Equity Act 55 of 1998 (EEA) is a pivotal piece of legislation promulgated to address inequalities in the workplace. The Act’s objectives speak to “promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination” and “implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups in order to ensure their equitable representation in all occupational levels in the workforce”. When considering this aim, it is important to understand the difference between equity and equality.
Equality focuses on treating everyone the same by providing the same opportunities and resources. In contrast, equity involves giving individuals the specific resources and opportunities they need to achieve the same outcomes as others. The purpose of the Act is not only to achieve equity but also to strive for equality simultaneously; however, it remains apparent that there is a misconception about how the scales of employment equity and affirmative action should be balanced.
The recent case of Solidarity on behalf of Erasmus v Eskom Holdings SOC Ltd (2024) 45 ILJ 2073 (LC) exemplifies this misconception, where the Labour Court had to determine whether fair treatment was given to all employees specifically relating to promotion opportunities within the workplace.
In this case, a white male applied for a promotion within Eskom, which was subsequently denied on the grounds of race. This specific individual had thirty (30) years of service within the company and had been acting in the position and was encouraged to apply for the permanent position. The Technology Division Manager approved the consideration of his permanent appointment, but it was soon contested by the Employment Equity Manager, who indicated that preference ought to be given to African males and females. It became clear that the company’s employment equity policy had been designed only to short-list under-represented candidates. It acted as an ‘absolute barrier’ to individuals not forming part of the preferred groups as they would have no prospects of being considered for the role.
In this case, the definition of an ‘employment policy’ was revisited, including recruitment procedures, advertising, selection criteria, and promotions, amongst others. Along with this, the definition of affirmative action was also re-affirmed, and one of its ultimate aims is to identify and eliminate employment barriers that adversely affect designated groups. Honourable Judge Rabkin-Naicker had to determine whether Eskom’s recruitment policy of shortlisting African males and females of all races exclusively amounted to unfair discrimination and acted as an ‘absolute barrier’.
The judgment relies on Section 6 of the Act, in that no person may be discriminated against in an employment policy or practice based on race. The judgment thoroughly investigated whether Eskom’s employment equity plan aligned with affirmative action measures, and it was subsequently found that the Applicant was discriminated against based on his race only since he was found to be an ideal fit for the role. Simply put, no other reason, except for his race, existed for disregarding him for the role. It was established that it was practice within the company to discard candidates who applied for positions by having identified themselves as ‘white’, which does not advocate for the affirmative action measures or fair and equal treatment of employees encapsulated in Section 2 of the Act.
The objective of affirmative action measures is to ensure that suitably qualified individuals are equitably represented in all occupation categories and levels. A key goal of workplace equity is to hire and retain individuals who not only contribute to diversity but are also skilled individuals who are deemed excellent fits for their respective roles within the company, feeding the ultimate objective of inclusivity, employment equity, and equality. The key for any employer lies in being able to balance employment equity against equality when recruiting.
It is essential to not prohibit any person from showing their worth to an employer during a recruitment process and to allow each applicant to respond to the application without their right to equality and dignity being unjustifiably infringed. In this case, the employer failed to take the entirety of the Act’s objective into consideration, as an employer is expected to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination. The employment equity plan placed an absolute barrier against the Applicant being appointed for the role, which inevitably infringed on his right to dignity and equality.
This case carefully demonstrates the delicate balance employers must exercise when drafting and compiling recruitment policies to give effect to the objectives of the Act in its entirety. Employers are encouraged to adopt transparent, fair, and inclusive employment equity practices that allow candidates to compete for positions based on merit and qualification. It showcases that employers should treat all employees fairly whilst upholding and actively working towards harnessing barrier-free employment equity plans by ensuring that everyone from all walks of life is treated equally throughout the recruitment process.
Article By Lee-Ann Venter
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)