The Labour Court, in Solidarity obo Benjamin v Department of Correctional Services and Others handed down judgment in which it warned employers not to formulate rigid approaches to Employment Equity.
Stating that ‘affirmative action measures must be rationally implemented’ and that ‘numerical targets cannot be applied in an absolutely rigid manner’.
In this case, Ms Benjamin had been strongly recommended for promotion, but her employer declined to appoint her on the basis that the appointment would not have aligned with the employer’s employment equity targets.
The Court held that the decision not to promote Ms Benajmin was unfair and that the evidence suggested that the decision was based solely on numerical EE targets. The Court found that the employer had not considered whether there was any realistic prospect of identifying a suitable candidate from an under-represented group. This was especially significant as the employer’s very own selection panel had advised that Ms Benjamin could be promoted on merit, as there were no suitable candidates found by the panel from under-represented groups.
The Court concluded that the decision not to promote the employee was irrational, capricious and unfair, citing that in the context, “common sense and fairness dictated that numerical targets should have been treated as a neutral factor, and therefore the selection fell to be determined on merit”. The Court set aside the initial arbitration award and awarded Ms Benjamin 12 months’ compensation.
This case is but one of numerous progressive judgments in which the rigid application of employment equity targets has been rejected, and where merit has been placed at the forefront of the appointment and promotion processes.
From the outset, NEASA has been fundamentally opposed to and outspoken on the concept of hiring persons based on racial metrics and requisites. No racial or gender spreadsheet should ever decide who gets a job, gets promoted, trained, or even dismissed. Labour market realities and merit must always be the deciding factor.
Employers are once again advised to never rigidly and blindly apply state-enforced employment quotas in their appointment and/or promotion processes.
Employers who require assistance in this regard should contact NEASA at