n Ethekweni Municipality v Nadesan and Others [2021] 6 BLLR 598 (LC) the Labour Court (LC) had to determine whether an Indian male employee was unfairly discriminated against when he was not appointed to the position of Senior Storekeeper, Fire and Emergency Services. This position had been vacant for a year and the filling of this position had become urgent as it was impacting on the functionality of the department. It was a critical and highly specialised role that required a lot of experience to develop in-depth knowledge of specialised firefighting equipment and uniforms. There were accordingly very few candidates with that experience. The employee had 15 years of experience and he scored the best among other shortlisted candidates in the written examination and interview questions. There was, however, over-representation of Indian males in the Emergency Services Cluster whereas there was under-representation of white males, white females, and African females. The selection panel was, therefore, aware that ideally an African female should be appointed to the position to address this inequity. There were, however, no suitable African female candidates so the selection panel recommended the appointment of the employee on the basis that African females could be appointed to other vacancies within the cluster to address the inequity. The recommendation from the selection panel was rejected and the position was re-advertised with the hope that a suitable African female candidate would come forward in the next round.

The employee alleged that this constituted unfair discrimination based on race and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The employer municipality alleged that the employee was not appointed because Indian male employees were already overrepresented in the occupational level in which the position fell. The CCMA found that the employee had been unfairly discriminated against. The municipality then referred the dispute to the LC alleging that the commissioner erred in finding that the employee was unfairly discriminated against as there had been no attack on the employment equity plan.

The LC was required to consider whether the affirmative action measure not to appoint the employee was fair and rational in the circumstances. The LC referred to the decision in Solidarity and Others v Department of Correctional Services and Others (Police and Prisons Civil Rights Union and Another as amici curiae) [2016] 10 BLLR 959 (CC) to determine which test to apply to determine the lawfulness of an affirmative action measure. In this case, there were two views regarding the rationality of an affirmative action measure. The one view is that a measure should not be interfered with if it is rationally connected to addressing identified demographic imbalances. The second view is that rationality is not the only ground, and the court is required to consider the effect of the employment equity plan. Therefore, it may still constitute unfair discrimination even if the measure may rationally advance demographic representivity in general, but it infringes on the dignity, right to equality and other legitimate interests of the non-appointed candidate. Whitcher J preferred the latter test in this case.

The LC per Whitcher J found that the ‘fairness’ approach requires one to first consider whether the affirmative action measure is rational and then one needs to consider whether it is fair by considering the facts of the matter. A test was suggested in terms of which a measure would be regarded as irrational if the following factors are present –

  • the measure will not address the demographic inequity;
  • there is no employment equity plan;
  • the plan imposes quotas;
  • the objectives of the plan have already been met;
  • the wrong demographic statistics have been taken into account; and
  • the affected employee is a member of more than one previously disadvantaged group.

If, after considering these factors, it is determined that the measure is rational then it needs to be determined on the facts of the case whether the benefit for the advantaged person outweighs the harm to the external parties. Therefore, although a measure that is rational is presumed to be fair it may still be regarded as unfair depending on the facts. Factors to consider assessing fairness are –

  • the prospects of finding a suitable candidate from the under-represented group;
  • the number of times a rejected candidate has been assessed;
  • the extent to which groups are under-represented;
  • the difference in scores between the successful candidate and the other applicants;
  • the time that the overlooked candidate has spent in an acting capacity in that role;
  • the impact on being overlooked on self-worth and dignity;
  • the need to fill the post with the best qualified person; and
  • the needs of the business as a whole.

It was emphasised that a candidate’s disappointment cannot lightly trump the need to achieve transformation in the workplace. Therefore, the facts of the case always need to be considered. For example, an employer may be able to demonstrate that it was fair in the circumstances to negatively impact an employee’s dignity because there is an operational requirement to attain certain demographics for Broad-based Black Economic Empowerment purposes in order to preserve business.

In this case, the abovementioned factors were considered, and it was found that the decision not to appoint the employee was irrational in the circumstances notwithstanding that there was no evidence led on the critical nature of the role or the impairment to the employee’s dignity. It was, however, irrational to re-advertise a role when there had been no suitable African female candidates available and there had been no consideration given to appointing African females into other roles in the cluster to address the inequities in that cluster. It also appeared that incorrect statistics were used as a basis for the decision.

In regard to the allegation by the employer municipality that the employee was required to attack the municipality’s employment equity plan, it was held that that was an incorrect interpretation of the South African Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae) [2014] 11 BLLR 1025 (CC) case as to require an employee to challenge the plan would have the effect of depriving employees of the right to allege unfair discrimination if the decision was taken in accordance with a valid and acceptable employment equity plan.

The appeal was accordingly dismissed.

Source: De Rebus 1 August 2021 : By Monique Jefferson (Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.)