Harmse and City of Cape Town

Case law and legislation review

By Gary Watkins

"New rights and wrongs: has the Labour Court exceeded its powers in ruling that all employees have a right to affirmative action, and all employers a duty to implement affirmative action?" The case is noteworthy in interpreting some of the key provisions of the Employment Equity Act:

# Jacobus J.P. Harmse and City of Cape Town Case No. 966/2002 Labour Court per WAGLAY, J:

In this matter, the applicant referred a dispute with his employer to the Labour Court claiming that he had been discriminated against in terms of section 6 of the Employment Equity Act 55 of 1998 (the "Act"). He alleged that the decision of his employer not to shortlist him for any of the three posts to which he applied constituted unfair discrimination. The applicant, a coloured senior manager, alleged that he was discriminated against on grounds of race, political belief, lack of relevant experience; and/or other arbitrary grounds (this claim was not pursued by the applicant).

The Applicant further alleged that the employer unlawfully discriminated against him by failing, in considering his application for short listing, to apply certain subsections of section 20 of the Act [which addresses the requirement for designated employers to implement employment equity plans].

The employer raised an exception to the Applicant's statement of claim on a number of grounds. The grounds relied on fall into two categories - the Statement of Claim was vague and embarrassing; and the Statement of Claim lacked averments that were necessary to sustain the action. The Court, after addressing the exceptions at length, dismissed the exceptions raised by the employer with costs.

The case is noteworthy in interpreting some of the key provisions of the Employment Equity Act:

The applicant was a black person as defined in the Employment Equity Act (Act No. 55 of 1998) ("the Act"). During August or September 2001, the employer advertised posts of strategic executive directors. The employer informed all employees that the appointment process would comply with the Act. The applicant alleged that the employer failed to shortlist him for any of he three posts for which he applied. The employer appointed white males to two of the three advertised posts. The employer, the City of Cape Town, was at the time controlled by the Democratic Alliance.

# Political belief

In a multi-party democracy where one political party predominantly controls local councils, there is clear scope for arguing, as the applicant did in this case, that his personal political beliefs are not regarded as appropriately politically aligned with the political party that was in control of the employer.

In deciding on the reasonableness of the exception raised by the employer to the applicant's claim that he was discriminated against on grounds of his political beliefs, the Court dismissed the employer's exception and held that

"The respondent is by its very nature a political animal. The respondent must surely know not only the political party referred to but also the political beliefs of such part. The specific and particular views of that political party is a matter which, on the basis of the statement of claim as it stands, will and must be dealt with in evidence. It is not necessary (though it may be desirable) that the applicant spell out in detail the full and complete nature of his own 'political alignment'. In the context of the nature of the respondent (an overtly political animal) it is sufficient (or adequate) that the statement of claim alleges that the applicant was" not regarded as being appropriately politically aligned and for this reason, inter alia, was not shortlisted".

# Affirmative action is not only a defense, but also can found a claim, that affirmative action is both a "shield" and a 'sword".

In this case the employer argued that affirmative action may only serve as a defense. The Court made the following determination:

"In part this is correct. The real answer however lies in the determination of who is making the claim of affirmative action. It may found a cause of action in the hands of one and defence in the hands of another".

"If one were to have regard only to section 6 of the Act then one might be drawn to the conclusion that affirmative action is no more than a defence to a claim of unfair discrimination. Affirmative action is indeed a defence to be deployed by an employer against claims that it has discriminated unfairly against an employee. In this sense, it serves as a shield. However, having regard to the fact that the Act requires an employer to take measures to eliminate discrimination in the workplace it also serves as a sword".

Affirmative action has its roots embedded firmly in the Constitution of the Republic of South Africa (Act 108 of 19996) ("the Constitution"). Under the Constitution equality is a fundamental human right. Section 9(2) of the Constitution provides that "equality includes the full and equal enjoyment of all rights and freedoms.

To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken." In addition to this, section 9(4) of the Constitution provides that "national legislation must be enacted to prevent or prohibit unfair discrimination." The Employment Equity Act is borne of this constitutional imperative.

The protection and advancement of persons or categories of persons disadvantaged by unfair discrimination, by legislative and other measures is recognised by the Constitution as part of the right to equality.

There is no doubt that an employer may not discriminate unfairly against an employee. This right not to be unfairly discriminated against is an integral part of the right to equality and a necessary condition of the inherent right to dignity in section 10 of the Constitution. This right not to be unfairly discriminated against is a right enjoyed by all employees whether or not they fall within any of the designated groups as identified in the Act.

If an employer fails to promote the achievement of equality through taking affirmative action measures, then it may properly be said that the employer has violated the right of an employee who falls within one of the designated groups not to be unfairly discriminated against. Similarly, if an employer discriminates against an employee in the non-designated group by preferring an employee from the designated group who is not "suitably qualified" as contemplated in sections 20(3) to 20(5) of the Act, then the employer has violated the right of such an employee not to be discriminated against unfairly. In either case, the issue is whether the employer has violated an employee's right not to be discriminated against. To this extent, affirmative action can found a basis for a cause of action.

# Discrimination on grounds of prior experience applies to all employers

Section 20 of the Act provides that an employer may fairly discriminate solely on the grounds of a persons "lack of relevant experience". The factual circumstances in which a persons lack of relevant experience may on it's own form the basis of rendering the person unqualified or not suitably qualified are however, limited as section 20(5) provides that the employer may fairly discriminate on the combined grounds of lack of relevant experience and formal qualification, prior learning, or formal qualifications and prior learning.

Employment equity is partly about providing equal opportunities and indeed preferential treatment to persons falling within the designated groups. Affirmative action measures may however only be taken in respect of 'suitably qualified' people from the designated groups. This much is apparent from the definition (description) of 'affirmative action measures in section 15 of the Act. Section 4 of the Act provides that except where Chapter III otherwise provides, Chapter III of this Act applies only to designated employers and people from designated groups."

Section 20(1) does indeed provide that a designated employer must prepare and implement an employment equity plan. Section 20(2) elaborates the contents of such an employment equity plan. Section 20 as a whole, however, is concerned with more than just the preparation and implementation of an employment equity plan. Section 20(3)-(5) outlines factors to be taken into account in the determination of whether a person is 'suitably qualified'.

Section 20(3) begins with the phrase "For the purposes of this Act...". The concept of "suitably qualified" is not described nor defined elsewhere in the Act. Accordingly the concept of suitably qualified, as elaborated in sections 20(3) to 20(5) applies to the Act as whole and is not limited to Chapter III. The prohibition against unfair discrimination solely on the grounds of a person's lack of relevant experience, as contained in section 20(5) of the Act, applies to all employers and is not limited to designated employers.

Similarly, the taking of affirmative action measures is the duty of every employer and is not limited to designated employers. This conclusion is based on section 5 of the Act, which obliges every employer "to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice".

THE FACTORS TAKEN INTO ACCOUNT BY AN EMPLOYER WHEN DETERMINING WHETHER AN EMPLOYEE IS 'SUITABLY QUALIFIED' CONSTITUTES AN EMPLOYMENT POLICY OR PRACTICE'.

Section 1 of the Act defines "employment policy or practice as including, but not being limited to 'selection criteria' and 'performance evaluation systems'. The applicant's allegations as to the reasons why he was not selected relate to 'selection criteria'. The Act must also be interpreted so as to give effect to its purpose. Section 2 of the Act defines its purpose as follows:

# Is there a legal right to affirmative action?

>> If the employer does have an affirmative action plan

Whether or not employees have a right to affirmative action arising out of an employment equity plan is another question altogether. The Court noted that a positive answer to that question does not inarguably arise from the language of sections 20(1) and 20(2) of the Act. One would have to consider the provisions of sections 20(1) and 20(2) of the Act, together with the Act as a whole and the Constitution. If however an employer adopts an employment equity plan that regulates appointments and promotions, then the employees may have a legitimate expectation that the respondent will act in accordance with the plan.

>> If the employer does not have an affirmative action plan

Does the failure by a designated employer to prepare and/or implement an employment equity plan in law constitute unfair discrimination in terms of section 6(1) or 6(2) of the Act? The Court held that if the grounds relied on and alleged by an applicant can, independently of the issue of the employment equity plan, be categorised as 'unfair discrimination' as contemplated in section 6 and sections 20(3) -(5) then the claim may properly be pursued in law.

# Is there a residual right to affirmative action?

On an analysis of the Constitution and the Act the Court held that the Act and specifically sections 20(3) to (5) read with Chapter II do indeed provide for a right to affirmative action. The exact scope or boundaries of such a right is a matter that will have to be developed out of the facts of each case.

The Court presented the following argument in support of its proposition that the right to affirmative action would extend to all employees and not only to employees employed by designated employers.

"Section 6 of the Act provides that it is not unfair discrimination to take affirmative action measures consistent with the purpose of the Act. Section 5 of the Act (also part of Chapter II) obliges every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. This section is peremptory and applies to all employers.

# Commentary

This decision by the Labour Court has not been without criticism. On the one hand it is been criticised in that the Employment Equity Act is predominantly regulatory in nature and did not create rights. On the other hand, some have argued that the Court has extended the duty to implement affirmative action measures to all employers and not only designated employers.

It is nevertheless one thing to require employers to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. It is another, as the Court has held, to require all employers to implement affirmative action measures.

The definition of affirmative action measures specifically refer only to designated employers. It can be argued that the judiciary has in this instance gone beyond merely interpreting the provisions of the Act, and has assumed the role of legislator.