In the unreported case of PSA obo Tlowana v MEC for Agriculture & others, the Labour Court emphasized the essential considerations to be taken into account when applying the affirmative action provisions of the Employment Equity Act.
Mr Tlowana, who was employed by the Department of Agriculture as an Assistant Director, applied for the position of Manager Cooperate Services: Sekhukhune. He was shortlisted, interviewed and recommended by the interview panel, but was not appointed. One of the requirements for the position was knowledge of the Persal system. It is a system for the administration of human resource transactions and payment of salaries for the South African Government at National and Provincial spheres. Tlowana possessed such knowledge. The successful appointee did not, yet she was short listed.
Tlowana referred an unfair labour practice dispute relating to promotion to the CCMA and an arbitration award was issued in favour of the employer. He subsequently brought a successful review application to the Labour Court, which remitted the matter for arbitration de novo.
Meanwhile the successful appointee had been transferred on his request. The position was re-advertised; Tlowana re-applied and was appointed, but sought compensation for his delayed appointment. He again referred an unfair labour practice dispute relating to promotion to the CCMA. At arbitration the arbitrator found no fault on the part of the employer and dismissed the referral.
The matter came before the Labour Court on review. The central issue before the Labour Court was whether the employer, in appointing the successful candidate over Tlowana, had acted rationally and applied its mind appropriately in its application of the remedial measures envisaged in the Employment Equity Act.
The court emphasised the essential considerations in such an application:
- As the purpose of remedial measures such as affirmation action is not to prejudice or penalise others, it must first be established whether there is no less onerous way to achieve such objectives;
- Race, gender and class are not the sole manifestations of social differentiation and discrimination. Each equality claim must be carefully contextualised to assess the fairness of the measure being challenged.
Rational application of these considerations requires adherence to certain guiding principles:
- Fairness and justice dictates that appointments primarily be based on merit;
- Random and haphazard discrimination is potentially counterproductive. Remedial measures must be implemented via properly designed plans and programs.
The formula adopted by the employer for appointments were the preference of female candidates who were second on the shortlist with a differential of 2 or less. The court did not find this to be irrational. It found that the problem was that someone who had no ability to work with the Persal system had escaped detection in an earlier stage. The successful appointee was not supposed to have been short-listed in the first place as she did not meet the minimum requirements of the position.
The court found that short-listing of candidates who did not meet the minimum requirements of the position amounted to random and haphazard discrimination.
The court set aside the arbitration award and said Tlowana deserved to be promoted from the date of the successful appointee’s appointment and granted him compensation.
Back to top