Points of clarity on the implementation of Employment Equity Plans

Posted: March 2, 2010 in Uncategorized

The Labour Court recently (24 February 2010) in Solidarity obo Barnard and Another v South African Police Services (JS455/07) , per acting judge Paul Pretorius SC, surmised various important factors to be taken into account when appointing or promoting employees under the auspices of an employment equity plan.  These are: –

“The provisions of the Employment Equity Act and an Employment Equity Plan must be applied in accordance with the principles of fairness and with due regard to the affected individual’s constitutional right to equality. It is therefore not appropriate to apply, without more, the numerical goals set out in an Employment Equity Plan. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected. In this regard the need for representivity must be weighed up against the affected individual’s rights to equality and a fair decision made.” [at §25.1]

“[I]ndividuals from non-designated groups (and perhaps from designated groups too) will be adversely affected by the implementation of employment equity plans. But both as a matter of substance and procedure implementation of employment equity plans should be effected with due regard not only to the individual’s right to equality but also to the dignity of affected individuals. This is particularly so when it comes to the application and effective use of internal dispute resolution procedures and statutory conciliation procedures.” [at §25.2]

“[T]he extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law. In this case at least the following considerations are relevant. First, the terms of the Employment Equity Act require the application of its provisions to be done in a manner that is both rational and fair. Second, due recognition must be given to the affected individual’s rights to equality. Third, in the implementation of an employment equity plan, due recognition must be given to the right of affected persons to dignity.” [at §25.3]

“Where a post cannot be filled by an applicant from an under-represented category because a suitable candidate from that category cannot be found, promotion to that post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group.” [at §25.4]

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