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BY   lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it.. Go to www.labourlawadvice.co.za. This article first appeared in The Star.

In the case of Walters vs Transitional Local Council of Port Elizabeth & Another (2000, 21 ILJ 2723 the job applicant, a white female with the necessary experience, was short listed for a position of principal personnel officer together with another applicant who was a black male. When the black male was recommended for the post the white female referred to the Labour Court an unfair discrimination application.

 

The Council’s defence was that it had chosen the black male on the basis of affirmative action principles. However, it was shown that the Council had not formulated an affirmative action plan in accordance with an agreement between the Council and employee representatives. The Court therefore found that

the Council had discriminated unfairly against Walters.

 

In the case of Coetzer and Others vs the Minister of Safety and Security (2003 2 BLLR 173) Coetzer and his colleagues were all members of the police force’s (SAPS) explosives unit. They complained that it was unfair for them to be refused promotions due to the fact that they were white males and therefore did not belong to groups designated for affirmative action (Black, female or disabled people). The SAPS claimed that it was merely carrying out its employment equity plan (EE Plan) in accordance with the law.

 

The court noted however, that the SAPS had also undertaken not to erect absolute barriers against advancement of employees from non-designated groups. Also, while there were no vacant posts for non-designated employees at the time there were vacant posts for members of designated groups. However, no applications from members of designated groups had been received.

 

When a second attempt to attract members of designated groups to the unit failed the SAPS still refused white males the right to be considered for the posts. The Court found that this was an unfair and irrational decision because it resulted in key posts not being filled despite the fact that people from designated groups did not wish to apply for the posts. The SAPS was therefore ordered to promote the white males.

 

Thus, despite the increasing pressure being placed on employers to implement AA there is no room for panic in the employer’s strategy. It is however crucially important for employers designing and/or implementing their AA policies or recruiting employees to obtain proper legal advice before taking any action.

 

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