South Africa: Employment Equity Demographics: Going National Or Staying Regional?

In the recent Labour Court judgment in Solidarity and Others v Department of Correctional Services and Others¹, the Department of Correctional Services ("DCS") was ordered to take immediate steps to ensure that, instead of taking into account only the national demographics of designated groups when setting employment equity targets at all occupational levels of its workforce, it take into account both national and regional demographics.

The widely publicised judgment was delivered pursuant to a referral by six Coloured applicants² who claimed that they had been unfairly discriminated against on account of race, gender and/or sex by virtue of not being selected for the posts for which they had applied (because the DCS wanted to appoint candidates from other race groups (such as Africans) to the posts in question, not Coloured candidates).  At the core of the dispute was whether the provisions of the DCS's Employment Equity Plan ("EEP") was consistent with the Employment Equity Act ("EEA") and, in particular, whether 'regional' demographics had to be taken into account by the DCS in developing and applying an employment equity plan.   In addition, the Labour Court was called upon to determine whether the manner in which the EEP had been implemented by the DCS amounted to unfair discrimination.

The EEP was a national plan in force at the DCS for the period April 2010 to December 2014.  The EEP required that recruitment and selection processes undertaken by the DCS be driven by employment equity considerations in order to ensure that the shortlisting of candidates and all appointments were informed by the EEP, which made reference to certain national numerical targets.  With regard to regional divisions of the DCS and its business units, the EEP called upon each region to develop an Employment Equity Implementation Plan which was aligned to its national plan.  The EEP also went further to include tables outlining the employment equity targets at various levels of the DCS workforce.  For example, the tables prescribed that at "[a]t level 3 only Whites and Indians should be appointed" and "[a]t level 5 only African females, Whites and Indians can be appointed."

In support of their claim, the Coloured applicants made reference to the provisions of section 15 of the EEA which provides that employers should make "reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer".  It was contended that this not only required that opportunities offered to persons from designated and non-designated groups be the same (so that the employment opportunities offered to those candidates from the designated groups do not exceed the employment opportunities offered to those from the non-designated group) but also that this consideration operated equally, if not more so, where appointment decisions required a choice to be made between different persons who all fall within a designated group (such as 'Black people', which is defined to comprise African, Coloured and Indian people).  The applicants contended that a 'blanket solution' in such a situation would be inappropriate, and rather an assessment of the individual was necessary where a choice had to be made between competing members from a designated group.

In its defence, the DCS contended that as a designated employer it was required to prepare and implement an employment equity plan aimed at achieving reasonable progress towards employment equity and that it was entitled to use national and not regional demographics for its EEP because it is defined as a national department under the Public Service Act, 103 of 1994.  The DCS was of the view that its EEP provided for the implementation of affirmative action measures to ensure that there is equitable representation of suitably qualified persons (from designated groups) in all occupational categories and levels of DCS and accordingly that its EEP was not race and gender profiling that was in conflict with any provisions of the Constitution or the EEA.

how did the court find?

In evaluating the submissions of the parties, the Labour Court found that while the right to equality, as enshrined in the Constitution, proclaims that everyone is equal before the law and has the right to equal protection and benefit of the law, it goes further to authorise and recognise restitutionary measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination in order to advance the achievement of equality.  It was on this basis that the Labour Court rejected the submission of the applicants that the restitutionary measures under the EEA promoted equal opportunity for designated groups to compete with members of the non-designated group, i.e. that the employment opportunities offered to those candidates from the designated groups should not exceed the employment opportunities offered to those from the non-designated group.

As to the question of whether the applicants had been unfairly discriminated against by virtue of the selection and appointment process of DCS (guided by inter alia its EEP) which did not take regional demographics into account for the purposes of its equity objectives:

• The Court referred to section 42 of the EEA, which provides expressly that an employer should consider the extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer's workforce in relation to the demographic profile of the national and regional economically active population. 
• However, whilst the text of the EEA itself thus made direct reference to regional demographics, it was recognised by the Court that the Codes of Good Practice promulgated in terms of the EEA were contradictory in this regard.  In the face of conflicting provisions in the Codes, however, the Court found that those which supported the provisions of the EEA and the Constitution should be preferred. 
• The Court therefore held that the clear meaning of section 42 of the EEA revealed that both regional and national demographics must be taken into account when determining numerical targets. 
• The Court recognised that, while it was essential that national demographics factor into all employment equity plans to ensure the safeguarding of the African majority who were most severely impacted by Apartheid policies, regional demographics should also considered to ensure that all those persons who comprise "Black" persons in terms of the EEA benefit from the restitutionary measures created by the EEA, in line with the right to equality as entrenched in the Constitution.

The Court accordingly found that the applicants, who were Black employees in terms of the EEA, had suffered unfair discrimination given that the selection and recruitment process derived from EEP took no cognisance of the regional demographics of the Western Cape, and that this amounted to unfair discrimination.

With regard to the appropriate relief in the circumstances, the Court ordered the DCS to take immediate steps to ensure that both national and regional demographics are taken into account in respect of members of designated groups when setting equity targets at all occupational levels of its workforce. The Court considered this to be the most appropriate relief in the circumstances, i.e. relief that would 'benefit all employees of DCS in the Western Cape who are black employees of the DCS and members of the coloured community in the future'.

what are the implications of the judgment?

On the judgment as it stands, therefore, employers are entitled (and indeed obliged) to take both national and regional demographics into consideration when setting equity targets.  But what are 'regional' demographics?  The parameters of exactly what will constitute 'regional' demographics were not really explored in the judgment, although the court appears to have accepted that regional can at least mean provincial.

While questions therefore remain as to whether 'regional' equates to only provincial or whether it can mean something even more localised than that for a particular employer, what is implied in the judgment is that there can be some recognition in the employment equity target setting for an employer's workplaces in the Western Cape, for example, of a relatively greater proportion of Coloured people than the portion of the population that Coloured people represent nationally.  (Unlike the national demographics, where Coloured people make up only approximately 11% of the economically active population and Africans constitute 74%, in the Western Cape approximately 56% of the economically active population are Coloured people and only 28% are African.)  The same will go for other provinces where the provincial demographics are out of kilter with national demographics (e.g. KZN, where there is a greater Indian representation in the population or the Northern Cape where there is a greater Coloured representation).  For employers in these regions who draw their workforces from the local population, this should make complying with employment equity targets a more realistic endeavour.

This judgment is unlikely to be the final word on the matter.  It is likely that the judgment (or the same issue in different litigation) will be taken to the appeal courts.

Footnote 

1. [2013] ZALCCT 38 (18 October 2013).

2. There was also one white male applicant but his case does not impact on the essence of the judgment in the matter

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