Land­mark rul­ing on em­ploy­ment equity

Weekend Argus (Saturday Edition) - - NEWS - THETO MAHLAKONANA

GEO-NITA Baart­man could not con­tain her tears when she heard Act­ing Deputy Con­sti­tu­tional Court Jus­tice Bess Nk­abinde say she had won her chal­lenge against her em­ployer’s em­ploy­ment equity plan.

The mother of one, along with nine oth­ers, was de­nied ap­point­ment by the Cor­rec­tional Ser­vices Depart­ment based on their race.

Yes­ter­day the court ruled the depart­ment had un­fairly dis­crim­i­nated against seven em­ploy­ees, in­clud­ing Baart­man, who now have to be ap­pointed, with back­dated pay and ben­e­fits.

“I started this process not for my­self. I was say­ing if I don’t take this on, I am go­ing to fail my child. So I feel good be­cause if we kept quiet, it would have just con­tin­ued… It’s been a painful process. We went through many things, we thought we’d lose our jobs, for four years we lived in fear,” she said.

A white man was among the three ap­pli­cants whose ap­peals were dis­missed, be­cause the depart­ment demon­strated to the court it had an ad­e­quate rep­re­sen­ta­tion of his cat­e­gory.

It was also found that one of the ap­pli­cants whose ap­peal failed had al­ready been em­ployed, while an­other was never rec­om­mended to the po­si­tion.

Trade union Sol­i­dar­ity led the four-year bat­tle to force the em­ployer to also con­sider re­gional de­mo­graph­ics when ap­ply­ing its em­ploy­ment equity plan, and not just rely on na­tional data.

Hir­ing some of the best le­gal minds in the coun­try, the union took the de­part- ment to the Labour Court for the first time in 2012, de­mand­ing work­ers de­nied ap­point­ment de­spite quali- fy­ing for the posts be con­sid­ered.

Due to the high pop­u­la­tion of coloured peo­ple in the Western Cape, where the ap­pli­cants were based, the depart­ment’s in­sis­tence on not ap­ply­ing re­gional de­mo­graph­ics meant they did not get jobs, de­spite their large num­bers in the prov­ince com­pared to the rest of the coun­try.

The rul­ing by the court will af­fect other gov­ern­ment de­part­ments, which could be im­ple­ment­ing a sim­i­lar plan.

“The depart­ment acted in breach of its obli­ga­tions un­der Sec­tion 42 of the em­ploy­ment equity plan, in not tak­ing into ac­count the de­mo­graphic pro­file of the na­tional and re­gional eco­nom­i­cally ac­tive pop­u­la­tion, but sim­ply us­ing the de­mo­graphic pro­file of the na­tional pop­u­la­tion in ac­cess­ing the level of rep­re­sen­ta­tion of the var­i­ous groups, in­sert­ing the numer­i­cal tar­gets for its 2010 plan.

“The ma­jor­ity holds that this means the depart­ment used the wrong bench­mark, one that was not au­tho­rised by the rel­e­vant leg­is­la­tion,” Act­ing Jus­tice Nk­abinde said.

The judg­ment is in line with for­mer rul­ings made by the Labour Court where, al­though it was found that the depart­ment had un­fairly dis­crim­i­nated against the ap­pli­cants on this ba­sis, re­lief was not granted.

Sol­i­dar­ity hailed the rul­ing as his­toric and a land­mark and con­firmed it would use it in a case against the South African Po­lice Ser­vice, where a num­ber of posts were frozen.

‘The depart­ment

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