Employment Equity Plans and their validity came strongly into focus this past week with the Constitutional Court Judgement of Solidarity and Others v Department of Correctional Services Case Number 78/15 which was handed down on Friday 15 July 2016.
The Appeal to the Constitutional Court concerned a Labour Court Decision about the dispute between Solidarity and the Department of Correctional Services about the validity of the 2010-2014 Employment Equity Plan of the Department as well as the Department’s refusal to employ certain employees.
In short the Department based its plan on the demographic profile of the national population issued by statistics South Africa in 2005. The Department had concluded that Coloured persons and women were overrepresented at certain occupational levels.
Vacant posts were advertised and none of the Applicants were considered, one being a white person and the others being coloured persons. Solidarity referred an unfair discrimination dispute to the Labour Court for adjudication claiming that the Employment Equity Plan did not comply with amongst others Section 42 of the Employment Equity Act and was therefore invalid. Before being amended Section 42 obliged a designated employer to take into account demographic profiles of not only the national, but also the regional economically active population, in assessing whether the demographic groups were adequately represented.
The Majority of the Constitutional Court found that the finding the Employment Equity plan was invalid and was unnecessary as the plan had already run its course. The Court, however, found that the Department had acted in breach of its obligations under Section 42 of the Employment Equity Act. The Court found that the Department used an incorrect benchmark which was not authorised by the Employment Equity Act and held that the Department had no justification for using race and gender to refuse to appoint individual applicants and that, therefore, the decisions not to appoint most of the individual applicants constituted acts of discrimination.