by: Lisa-Anne Schäfer-King and Lesego Matji
The recent labour court case of Solidarity obo Erasmus v Eskom Holdings SOC Ltd (C1001/18) [2024] ZALCCT 18 (24 May 2024) centred around a racial discrimination claim arising from Eskom’s recruitment practices, more particularly, Eskom’s Employment Equity Plan (“EEP”).
Erasmus has been in the employ of Eskom since 1988. After initially assuming a managerial role as Project Manager in September 2004, he was transferred to his current position as Senior Advisor Outage Coordinator on 1 January 2017.
Context
During April 2017, the need arose for the appointment of a Manager: Site Outage Execution. According to the staff requisition form, the individual appointed to the post was required to manage the Outage Execution section to meet Eskom’s business objectives in that section. The Employment Equity Assigned Manager indicated on the form that African males or females of all races should be preferred for the post.
During July 2017, the Manager: Site Outage Execution position was advertised internally, listing the criteria for the post, and highlighting the following:
“Eskom is committed to equality, employment equity and diversity. In accordance with the employment equity plan of Eskom and its employment equity goals and targets, preference may be given, but is not limited, to candidates from under- represented designated groups. Eskom reserves the right not to make an appointment to the posts as advertised. Candidates with disabilities are encouraged to apply for positions.”
Candidates were shortlisted and interviews were conducted, with Erasmus being one of the shortlisted candidates. Erasmus and an African male were the two candidates recommended for consideration. Although Erasmus did not meet the specified criteria because it was preferred that the person appointed to the post was an African male or female of any race, he was shortlisted for this position because he identified himself as “African” during the application process. He expressed that he did so as he saw himself as an African white. Despite Erasmus and an African male being recommended for consideration, the post remained vacant. The core reason given to Erasmus for not finalising the process was “the appointment we wanted to make was not in support of Eskom’s employment equity strategy.”
Formal grievance
Erasmus lodged a formal grievance, citing racial bias as the reason for his non- appointment. He claimed that Eskom’s EEP prevented his appointment to the position despite his qualifications and ample experience thereby representing a perceived quota system rather than an equal opportunity. Erasmus was not satisfied with the outcome of the grievance and referred a dispute to the CCMA and then the Labour Court.
During the trial, the witnesses for Eskom provided conflicting views on Eskom’s recruitment practices and the alleged racial bias. Eskom’s HR Business Partner defended Eskom’s equity requirements and selection criteria, arguing that white males, though not totally excluded, are often side-lined during the shortlisting process for senior positions if they are overrepresented. Their applications would be considered during the second round if suitable candidates are not found in the first round.
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The court evaluated the matter considering the constitutional requirement for equality, the prohibition of unfair discrimination, and the purpose and content of the Employment Equity Act (“EEA”). The court’s assessment concluded that Eskom’s employment practice of not shortlisting members of non-designated groups for advertised posts amounts to an absolute barrier and is not an affirmative action measure as contemplated by the EEA. The court stated that there were several methods available to address equity targets during interviews without denying certain groups the opportunity to demonstrate their capabilities.
Whilst Erasmus’ self-identification as “African” during the application process was deemed potentially misleading, it did not sway the court’s decision that he warranted compensation for the discriminatory treatment he experienced.
The court held that Eskom had unfairly discriminated against Erasmus and ordered Eskom to pay Erasmus compensation in an amount equal to 18 months salary calculated at the time of his application for the position. Furthermore, Eskom has been ordered to undertake remedial steps to halt its discriminatory practices.
Section 15
Section 15 of the Employment Equity Act (“EEA”) underscores the imperative for designated employers to proactively address historical disadvantages faced by designated groups through affirmative action measures. These measures are aimed at rectifying past discrimination and ensuring equitable representation of suitably qualified individuals from designated groups across all levels of the workforce.
However, it is crucial to recognise that the EEA also upholds the principles of fairness, equality, and non-discrimination for all employees, regardless of race. Section 6(1) of the EEA explicitly prohibits unfair discrimination in any employment policy or practice, including recruitment, promotion, and appointment processes, based on various grounds, including race.
Therefore, while affirmative action measures are designed to promote the interests of designated groups, they do not entail preferential treatment or discrimination against individuals who are not part of these groups. Rather, they aim to create a level playing field where all employees, irrespective of race, have equal opportunities to demonstrate their capabilities and advance in their careers based on merit, qualifications, and skills.
By applying the provisions of Section 15 alongside the overarching principles of fairness and non-discrimination outlined in the EEA, employers can ensure that their promotion and appointment processes are conducted transparently, objectively, and in accordance with the law. This approach fosters an inclusive workplace environment where diversity is valued, and all employees are empowered to contribute to their fullest potential.
Key litigation
Overall, this case supports litigation against practices that impede fair opportunities for all groups within an employment context.
Employers are encouraged to review their practices to ensure that they do not negatively impact upon the dignity and equality of candidates based on their race.
Lisa-Anne Schäfer-King is a Director at Fluxmans Attrorneys
