South Africa: Employment Equity – The Need To Be ‘Situation Sensitive’ Is Imperitive When Determining Equality Claims

Last Updated: 24 February 2014
Article by Pranisha Maharaj-Pillay

Most Read Contributor in South Africa, September 2018

The Supreme Court of Appeal ("SCA") recently pronounced on the protracted equality case concerning the grievance of a former police captain, Renate Barnard ("Barnard"), who was unsuccessful in applying for a promotion to the position of Superintendent in a specialised unit of the South African Police Service ("SAPS") on two occasions, despite it being admitted that she was the best candidate for the position.

During the course of her employment with SAPS, Barnard was laterally transferred to the complaints division of the SAPS head office called the National Evaluation Services ("NES") in the rank of captain. In and around September 2005, Barnard (along with six other applicants)1 applied to be appointed to a new promotion position of Superintendent which was advertised by the National Commissioner and created in order to ensure and improve service delivery to the public. This post, referred to as post 6903, was not reserved as a vacancy for a 'designated group' as defined in the Employment Equity Act 55 of 1998 ("EEA").

All applicants for post 6903 were interviewed by a racially diverse panel. During the interview process, Barnard scored an average score of 86.67 per cent, which was considerably higher than that of the other applicants. Following the interviews, four candidates, including Barnard were recommended for the position, with Barnard topping the order of preference.

A difference of 17.5 per cent separated Barnard from the candidate ranked second on the list, rendering (in the view of the interview panel) the gap too great to warrant recommending the second placed applicant as a first choice candidate, as this would compromise service delivery. The panel took the view that Barnard's appointment would not aggravate the lack of representivity at the level of Superintendent, because the representivity of the NES as a whole would be unaffected given that Barnard, if appointed, would remain part of it.

Following a meeting between the interview panel and the Divisional Commissioner, during which time the parties grappled with how to weigh the need for employment equity against the obligation to provide efficient services to the public, the Divisional Commissioner decided that position 6903 should remain "unfilled" due to employment equity reasons. In the view of the SCA, it was plainly apparent that Barnard's race was the reason why she was not appointed to the post. Post 6903 was subsequently withdrawn, but notably three months later, a white male Superintendent was laterally transferred to the NES to fill in.

During May 2006, post 6903 was advertised as the non-designated post 4701, and Barnard once again applied for the position. She was shortlisted, along with seven other candidates which comprised of four African males, one African female, one coloured male and one white male, and was put before a racially diverse interview panel once again. The interview scores revealed that Barnard scored at least 7.33 per cent more than the second choice candidate.

After post 4701 was advertised, the SAPS issued guidelines for equity targets for the year 2006/2007 which was said to be in line with its employment equity plan. The equity targets and representivity figures revealed that African males were the most underrepresented in the category akin to post 4701.

While the interview panel noted that appointing Barnard to post 4701 would not enhance representivity on the relevant salary level, at the same time it would not aggravate the current divisional representivity figures given that she was already a part thereof. The interview panel recognised however that Barnard was the only candidate during the process that displayed a unique blend of passion and enthusiasm to deal with members of the public. She also displayed a high level of commitment to the SAPS and an eagerness to contribute towards service delivery.

Following a meeting with the interview panel once again, the Divisional Commissioner supported Barnard's appointment to post 4701. His motivation for her appointment recognised that failing to appoint Barnard would send a wrong signal to her. He recognised that appointments and promotions were also made to address service delivery, and given that Barnard was constantly rated and recommended as the best candidate, she was the best candidate for the position.

Despite this recommendation, the National Commissioner did not approve the appointment of any of the recommended candidates. In declining to appoint someone to the role, the National Commissioner highlighted that the recommendation of the interview panel and the Divisional Commissioner did not address representivity, and further, the role was not critical and a failure to fill same would not affect service delivery.

Following an unresolved internal grievance and referral to the Commission for Conciliation, Mediation and Arbitration, Barnard referred her dispute to the Labour Court.

The Labour Court found that an employment equity plan must be applied fairly with due regard to the affected individual's right to equality, and representivity must be weighed against this right. Accordingly, in the view of the Labour Court, where a post cannot be filled by an applicant from an underrepresented category because a suitable candidate from that category cannot be found, promotion to that post should not be denied to a suitable candidate from another group, unless there is a clear and satisfactory reason for this.

Aggrieved by the decision of the Labour Court, the SAPS appealed to the Labour Appeal Court ("LAC"), which unanimously held that no discrimination had occurred against Barnard given that no appointment had been made to post 4701.

The SCA found that the LAC had erred in finding that there was no discrimination because there was no promotion to the post, given that it could not be contested that the Barnard was not appointed to the position because she was a white female.

The SCA reiterated that equality claims should be "situation sensitive" and therefore considerate of the situation of the complainants in society, their history and vulnerability, the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage when determining the fairness or otherwise of the discrimination.

Having determined that Barnard was discriminated against on the basis of her race, the SCA then turned to consider the fairness of the discrimination.

The SCA reiterated that to determine the fairness of discrimination, the facts of a particular case requires 'scrupulous scrutiny'. In so doing, the SCA recalled that the justification for Barnard's non-appointment was scant and that Barnard herself was a member of a designated group, namely women.

The SCA further noted the importance of the recommendations made by the interview panel and Divisional Commissioner, and that the National Commissioner had failed to effectively engage with such persons.

In being "situation sensitive", the SCA noted the impact of Barnard's rejection on her as well as the SAPS. Accordingly, the SCA found that the factual evidence did not support a finding consistent with that of the LAC and accordingly found that the LAC decision could not stand.

Given that the promotion position that Barnard applied for no longer existed, the claim before the SCA was limited to compensation in the form of the difference in remuneration that Barnard would have received had she been appointed to the position, which was granted but limited to a period of two years.

The SCA confirmed that the ultimate objective of employment equity legislation is to ensure a fully inclusive society. It noted however that it would be 'foolish to assume that this decision will be a Merlin-like incantation to address the varied cases likely to come before courts in relation to the application of the EEA'. The SCA therefore called upon adjudicators of disputes of this nature to be situation sensitive when determining equality claims.

This would apply equally to human resource management in both the private and public sector. The SCA noted that employers must be concerned about morale and cohesion within a workforce, and should therefore consider the impact of a rejection on apparently "dubious" grounds on a loyal employee.

Another important lesson to learn from this case is that, where an interview panel is constituted, although an employer is not bound by the panel's evaluation or recommendation, it should, at the very least, give consideration to their recommendations.

Employers are furthermore cautioned by the court to ensure that affirmative action measures are fairly applied, without losing focus of the fact that our employment equity obligations are premised on the objective of creating a fully inclusive society.

Footnote

1. Four black and two white persons

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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