Landmark ruling on employment equity

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