By the Employment team at Shepstone & Wylie Attorneys

Affirmative action in South Africa is defined in the Employment Equity Act No. 55 of 1998 (“the Act”) as:

“Measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer."

Designated groups refer to black people, women and people with disabilities.  Section 6(2) of the Act also states that it is not unfair discrimination to take affirmative action measures consistent with the purposes of the Act.

The recent case of Solidarity obo Labuschagne v Commissioner of the South African Revenue Services has shed more light on the concept of affirmative action and how it is conceptualised in terms of the Act.  The case dealt with a white female who claimed that she was unfairly discriminated against by her employer in that, instead of appointing her to a position, her employer extended the interview and selection process and appointed an African female.  The aggrieved employee, in approaching the Labour Court with her claim, argued that because her employer's Employment Equity Plan had not been revised or updated since expiry, it rendered  the application of affirmative action in the selection process irrational and unfair.

The court emphasized that, if applied correctly and in line with the Act, affirmative action does not amount to discrimination.  The court also emphasised the importance of section 13 of the Act in that employers must, in order to achieve employment equity, implement affirmative action measures for people from disadvantaged groups by consulting with its employees and preparing an Employment Equity Plan that must be implemented.  The Employment Equity Plan must further be developed and implemented by practices and policies which are rationally connected to the objectives the employer wants to achieve.

The Labour Court held that although Section 23 of the Act requires the plan to be newly developed and revised before the expiration of the existing plan, there is nothing in the Act prohibiting the employer, together with the necessary consulting parties, from extending the old plan as is, if it is within a period of one to five years.  In this case, the plan had been extended, in consultation with the relevant parties by the Employment Equity Committee.  This was accepted by the Court as being a valid Employment Equity Plan.  In short, the fact that the extended plan was not formally adopted, revised or amended, did not in the Court’s view, mean that  the application of affirmative action was irrational.  Instead, the court found that  extension of the plan resulted in it becoming the new plan which was used by the employer in the recruitment process (although nothing in the plan had changed).

Designated employers as defined by the Act are obliged to prepare, implement and monitor their Employment Equity Plans and must ensure that they either extend or ammend their plan accordingly depending on the period of time the Plan has been in use.