Durban Metropolitan Council and SAMWU obo Lootzy.(1998) 7 ARB 6.9.5 Private Arbitration - a case of affirmative action employment practice.

The dispute concerned the appointment of an African candidate in preference to a Coloured candidate who had been more highly rated in the selection procedure. The arbitrator upheld the appointment on the grounds that it was in conformity with the employer's affirmative action policy which justified measures to bring the demographic composition of its workforce in line with that of the metropolitan region. On the facts, African employees were underrepresented at the occupational level in question and the successful African applicant was suitably qualified to fill the position. These factors, together with the narrow difference in scores between the two candidates, persuaded the arbitrator that the employer's decision was fair. 

The award thus asserted the principle that affirmative action in favour of persons from previously disadvantaged racial groups is not confined to seeking equitable representation as between black and white but also as between different categories of black employees. While the EEA does not state this expressly, it is implicit in the criteria for judging compliance with the EEA laid down in section 42(a).

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Commentary: Determining the Fairness of Affirmative Action Measures
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"Besides the oft-quoted passages in George v Liberty Life [(1996) 17 ILJ 571 (IC)], which correctly stipulated that it was only the "equal" enjoyment of rights that was the legitimate purpose of affirmative action policies, South African law is still developing clear principles that would underpin fair affirmative action policies. Or, in other words, the courts have not yet definitely ruled when it is not unfair to discriminate against employees who are not of the race targeted by affirmative action policies."

- Arbitrator Whitcher in TWU obo Pretorius and Portnet (2000) 9 ARB 6.15.1

In a recent monograph published by Darcy du Toit (When does affirmative action in favour of certain employees become unfair discrimination against others?, 8 January 2001), the author, relying on a series Labour Court Judgements, CCMA Awards and recently published articles, submits that:-

That until recently emerging jurisprudence in our labour courts on affirmative action measures have become less clear.

Earlier judgements and awards initially followed Harksen v Lane NO 1998 1 SA 300 (CC) wherein the Court adopted a 2-stage test, namely that:-

+ Did discrimination take place? And if so,
+ The onus then shifted to the employer to establish that the discrimination was fair. A mere allegation by the employer that the action giving rise to the claim of discrimination (for example, the appointment of a black employee over a white employee)

The Court (relying on the provisions of the then Interim Constitution) noted that it was best to keep these two stages of the enquiry separate Du Toit notes that " . establishing affirmative action measures 'consistent with the purpose' of the EEA (and in accordance with Chapter III of the Act), thus, provides a complete defence to a claim of unfair discrimination and rebuts the presumption of unfairness adhering to discrimination based on race, gender or disability.

This does raise interesting problems in that:-

. affirmative action measures by non-designated employers fall beyond the framework of statutory employment equity plans. While such measures may be taken in terms of affirmative action policies or plans, no presumption of fairness by reason of statutory compliance will be created and the status of any such measures, if challenged, will need to be established on a balance of probabilities." [du Toit, p.4]

In subsequent cases additional criteria seems to have been tagged on to the initial 2-stage approach.

In many instances, they were developed in response to employers arguing that their actions were fair, when in fact:

+ Their affirmative action measures were 'irrational', 'haphazard' and isolated; or
+ Affirmative action measures were applied to non-South African Blacks (Thomas auf der Heyde v University of Cape Town)

Du Toit  notes that the Courts appear to have adopted the additional criteria for an employer's affirmative action measures to be recognised,
and therefore acquiring the protection of item 2(2)(b) of Schedule 7 (Transitional Arrangements, Labour Relations Act)

"an employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms";

(a) affirmative action measures should be part of a coherent policy or plan with 'an articulated and specific design';
(b) they should be causally related and proportional to their objectives, making as limited inroads as possible on the rights of other employees or work-seekers; and
(c) beneficiaries of affirmative action measures should personally have suffered or be suffering disadvantage as a result of past unfair discrimination rather than merely belonging to a category of persons that suffered such discrimination.

The author notes that the (a) and (c) above are not justified in law and in keeping with the objectives of the Employment Equity Act. It would be sufficient for the employer to argue that the affirmative action measure was causally linked to the objectives of the Employment Equity Act, namely, the equitable representation of designated groups the employer's workforce and not necessarily part of a coherent policy or plan. Rycroft, in an earlier article, submits that the third criteria (c) is equally untenable and would place an impossible burden on both the designated employee and the employer to establish individual disadvantage. The historical and systematic discrimination against blacks in South Africa is sufficiently documented to prevent any further debate concerning whether individuals has personally suffered under apartheid.

In the circumstances, it is submitted that the additional criteria set out in (a) and (c) above are not justified in law and that it would be sufficient for employers to establish that the affirmative action measure was causally linked to the objectives of the Act. This argument currently would only be tenable employers who are required to or have voluntarily chosen to comply with the provisions of the Employment Equity Act.