Employment equity: Affirmative action measures require more than good intentions

In the recent Labour Court decision of Mgolozeli v Gauteng Department of Finance and Another, the court held that no matter how well-intentioned affirmative action initiatives may appear to be, they must comply with the requirements of the Employment Equity Act. More specifically, these measures must be applied in accordance with an employment equity plan, along with a mechanism to track compliance. If these requirements are not met, it will leave such measures open to attack and an employer will not be able to rely on such measures as a valid and lawful basis for discrimination.

The court was asked to determine whether or not the Gauteng Department of Finance, in the absence of an employment equity plan, had unfairly discriminated against the applicant on the grounds of gender in its refusal to appoint him at a senior management level.

The Gauteng Provincial Government (GPG) had set itself a target of attaining a representative workforce with 50% females at senior management level by 2009, however this target was not in terms of an employment equity plan.

The applicant fell within the designated group for affirmative action and was interviewed for a position along with four other shortlisted candidates, only one being female. The panel unanimously recommended the applicant for appointment to the post on the basis of inter alia, scarce skills, proven competency and retention strategy.

The court considered the judgement in Munsamy v Minister of Safety and Security and others where it was stated that "an employer may, however, not prefer one group of designated employees over another group of designated employees who are supposedly overrepresented in the absence of proof of such representativeness and a valid employment equity plan which permits the action of the employer". This rule has been affirmed by the LAC. The GPG, in its decision to refuse the appointment of the applicant, simply relied on a memorandum from the Director General, a management bulletin and a message, after the fact from the HOD.

The court found that not only did the GPG not have a coherent, rational or defensible policy, programme or practice, albeit not in the form of an employment equity plan, the GPG had no way of monitoring or tracking the level of gender representation on a regular basis as contemplated in the Employment Equity Act.

The GPG was ordered to appoint the applicant to the senior manager position and to pay the applicant the additional remuneration that he would have earned had he been appointed on 11 March 2011. The order of the Labour Court was made in November 2014.

Mgolozeli makes it emphatically clear to employers that the existence and implementation of a valid employment equity plan is of the utmost importance. If an employer does not have a valid employment equity plan in place, any affirmative actions taken in the name of affirmative action and employment equity will fall short of the requirements of the Employment Equity Act and leave such employer open to legitimate attack by aggrieved employees who believe they are unfairly discriminated against.

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