The Labour Court in Johannesburg this week found that the use of a quota system in the workplace is unlawful. This judgment was given in Solidarity’s case against the Tshwane Municipality over unfair discrimination. In terms of the judgment the municipality has to promote and remunerate Mr Jan Pretorius, a water audit officer, retrospectively.
Among other things, Judge Faan Coetzee found that the municipality was inflexible when it had repeatedly overlooked Pretorius for promotion. The court furthermore found the municipality’s appointment policy, in terms of which Mr Pretorius was discriminated against purely based on race and gender, amounts to a quota system which is inconsistent with the Employment Equity Act.
Solidarity Chief Executive Dr Dirk Hermann says that in its judgment the court pointed out that the municipality’s appointment policy was based purely on numbers without any measurable targets. “Therefore, it amounts to the subjective exclusion of individuals from the non-designated group. The judgment makes it clear that government departments that do not have employment equity plans cannot hide behind policy documents that do not have proper employment equity and measurable targets,” Hermann said.
Hermann believes this week’s judgment is unique as it is the first time that a court has found that a white male was unfairly discriminated against as a result of a quota system. “The court found that it was unlawful to fill posts purely on the basis of the national race demography or even to leave posts vacant at the expense of suitably qualified white males. The court also found that the municipality had no legal grounds to exclude a suitably qualified candidate from the interviewing process. In addition, they did not take into account that the position required a scarce skill,” Hermann said.
Hermann added that from now on all employers would be compelled to follow a more nuanced approach to affirmative action. “Once again, the judgment confirmed that numerical targets in employment equity plans or policies must take a variety of factors into account. This judgment thus sets the necessary legal grounds for future lawsuits on cases of unfair discrimination against individuals from the non-designated group as a result of quotas,” Hermann added.
In terms of this week’s court order Pretorius has to be officially appointed to the post of foreman of trades as of 1 May, a post that has been left vacant. In addition, the municipality also has to backdate Pretorius’s remuneration. Retrospective compensation will be the difference between his current salary and that of Foreman: Artisans calculated over the period 8 October 2013 to 30 April 2016.
Background to the case:
Due to the colour of his skin Pretorius, who has been working for the Department of Water and Sanitation since 1999, was overlooked for promotion when he applied for the position of foreman: trades in August 2012 and again in July 2013 notwithstanding the fact that a panel had selected him as the most suitable candidate for the position. Moreover, the municipality did not have an approved employment equity plan at the time.
The post Pretorius had initially applied for in 2012 was again advertised in July 2013. For a second time Pretorius applied for it but this time he was not invited to an interview nor was he shortlisted. After Pretorius had lodged a grievance with the municipality in this regard he was informed in October 2014 that no white person could be considered for the position.
In May 2013 the Tshwane Municipality adopted an employment equity plan backdated for the period 1 July 2012 to 30 June 2017. Pretorius was not appointed to the position he had applied for apparently based on this plan. The plan contains a resolution which stipulates that no white person may be appointed to the said position.