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Courts unable to agree on key points of AA legislation
Ivan Israelstam
The Employment Equity Act (EEA) makes it compulsory for designated employers to implement affirmative action (AA). This means that most employers are required to employ, train and retain the services of employees belonging to designated previously disadvantaged population groups, these being black, female and disabled people.
The EEA defines black people as "Africans, Coloureds and Indians". Based on this definition, Chinese people do not qualify under the heading of affirmative action employees. This is illogical and unfair because under the apartheid regime Chinese people were severely discriminated against and are therefore previously disadvantaged. It is therefore not surprising that the Chinese community took this issue to court.
The Star reported on June 19 that the Pretoria High Court decided Chinese South Africans are to be included in the definition of black people for purposes of BEE legislation, and the EEA. It looks as if this decision is likely to stand as, according to the report, none of the government departments cited as respondents opposed the application. Also, in its favour, this decision corrected an injustice.
That is, as Chinese people were unfairly discriminated against historically their omission from the legislation appears to have been more for political than for reasons of logic or justice. The EEA requires designated employers to strive to ensure that the demography (population ratios) of their organisations mirrors the demography of the society in which the organisation operates.
For example, if the population of Gauteng is 80% black then designated employers need to do everything possible to ensure that there are 80 black people in every 100 at every level of their organisations, including top management.
While the law does not expect employers to fire all their able white males from key positions to make way for designated groups, the EEA does expect employers to fill vacancies with black, female and disabled people until the required demographic levels have been achieved.
While chapter 2 (prohibition of unfair discrimination) and chapter 3 (requirement for AA) of the EEA have similar goals, the way in which each of the two chapters are to be enforced differ. That is, where an employee or job applicant felt unfairly discriminated against he/she could sue the employer in the Labour Court. However, where employees feel that the employer is failing to implement AA they could report the employer to the Director- General of Labour.
This apparently clear division of recourse for aggrieved employees has been reinforced by the Labour Court's decision in the case of Dudley v City of Cape Town & another (February 2004 Vol 13 No 7 Contemporary Labour Law). In this case Dudley had been appointed to the post of interim manager: Health Services. Later on Dudley applied for a more senior post (director: City Health) advertised by the municipality.
The city appointed a white male into the post despite the fact that Dudley was qualified for the job, and the city had the obligation, in terms of its own policies, to implement affirmative action. Dudley, who was a black female, referred an unfair discrimination dispute to the Labour Court on grounds that the employer's failure to implement AA constituted unfair discrimination.
The court found against this claim, because, in its view:
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Failure to implement AA is a matter for the Director-General of Labour (DGL) to deal with, and not the Labour Court (unless the DGL) refers the matter to the Labour Court after having implemented his/her own enforcement mechanisms);
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AA is a group-based obligation and not an individual right; and
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Both SA's constitution and the EEA distinguish between AA and unfair discrimination.
But in the case of Harmse v City of Cape Town (February 2004 Vol 13 No7, Contemporary Labour Law) the Labour Court found an individual employee did have recourse directly to the Labour Court, on grounds that failure to implement AA constituted unfair discrimination.
This is yet another instance where the courts are unable to agree on key legal issues. In light of this uncertainty employers are advised to ensure that they implement AA responsibly, that their AA policies are in line with the EEA, and that these policies are realistically implementable. The decision of the Pretoria High Court to include Chinese South Africans as AA employees gives employers more opportunity to achieve their AA targets.
This decision will therefore be welcomed not only by Chinese people, and by those who believe in justice, but also by those employers forced by law to implement affirmative action. This is especially since the legal deadline for the submission by employers of their employment equity reports is only 13 weeks away. As maximum fines for failure to submit reports start at R900 000 for a first offence, employers need to get moving with their AA projects.
- Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011- 888-7944 or 082-852-2973 or
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- Our appreciation to Ivan and the Star newspaper for permission to publish this article
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