Solidarity & Others v Dept. of Correctional Services & Others (C 368/2012, C968/2012) [2013] ZALCCT 38 (18 October 2013)

Principle:

The clear meaning of section 42 of the Employment Equity Act is that both regional and national demographics must be taken into account. Where a selection and recruitment process derived from the employment equity policy takes no cognisance whatsoever of regional demographics, this amounts to unfair discrimination.

Facts:

At the heart of this dispute is the manner in which the Dept. of Correctional Services implemented affirmative action. Being a national department, it utilised national and not regional demographics for its Employment Equity Plan. Most of the applicants were members of the Coloured community in the Western Cape. The applicants referred a dispute to the Labour Court, claiming that they had been unfairly discriminated against by virtue of not being selected for the posts they applied for. The Court was asked to consider whether the Dept. of Correctional Services' Employment Equity Plan was consistent with the EEA and in particular, whether regional/ provincial demographics must be taken into account by the Dept. in developing and applying an employment equity plan. The Court was asked to evaluate whether the manner in which this Plan was implemented by the Dept. amounted to unfair discrimination.

The Court referred to section 42 of the EEA, which deals with assessing compliance with the Act. Section 42 mentions the need to consider the "demographic profile of the national and regional economically active population". The Court found that the clear meaning of section 42 is that both regional and national demographics must be taken into account. Where a selection and recruitment process derived from the employment equity policy takes no cognisance whatsoever of regional demographics, this amounts to unfair discrimination.

The Court found that the individual applicants who are black employees in terms of the Act had been unfairly discriminated against in the selection process, and ordered the Dept. to take immediate steps to ensure that both national and regional demographics are taken into account when setting equity targets at all occupational levels of its workforce.

Extract from the judgment:

[37]   Two subsections of section 42 deserve to be emphasised for our purposes. These are the following relevant factors to assessing compliance with the Act:

  1. The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer's workforce in relation to the-

    1. demographic profile of the national and regional economically active population;"

[38]   The selection process in DCS is premised on an understanding that the constitutionally mandated EEA allows for the disregard of regional demographics when targets are set for the advancement of designated groups by a national employer. We have seen that the EEA itself plainly refers to both national and regional demographics being taken into account for the purpose of compliance with the EEA. The EEA provides in section 54 that:

  1. The Minister may, on the advice of the Commission-

    1. issue any code of good practice; and
    2. change or replace any code of good practice.

  2. Any code of good practice, or any change to, or replacement of, a code of good practice must be published in the Gazette.

[39]   There are two Codes of Good Practice that have been promulgated in terms of the EEA. The first Code of Good Practice dated November 1999 was issued in respect of the 'Preparation, implementation and monitoring of employment equity plans'. The second Code of Good Practice was promulgated in August 2005 on the Integration of employment equity into Human Resource Policies and Practices. Neither of these codes were referred to by the parties. On a reading of these it is apparent that they contain certain conflicting provisions.

[40]   The 1999 Code which has not been repealed provides that:

"8.4   Numerical goals

8.4.1   Numerical goals should be developed for the appointment and promotion of people from designated groups. The purpose of these goals would be to increase the representation of people from designated groups in each occupational category and level in the employer's workforce, where under-representation has been identified and to make the workforce reflective of the relevant demographics as provided for in form EEA 8.

8.4.2   In developing the numerical goals, the following factors should be into consideration-

  • The degree of under-representation of employ employees from designated groups in each occupational category and level in the employer's workforce;
  • present and planned vacancies;
  • the provincial and national economically active population as presented in form EEA 8;
  • the pool of suitably qualified persons from designated groups, from which the employer may be reasonably expected to draw for recruitment purposes;
  • present and anticipated economic and financial factors relevant to the industry in which the employer operates;
  • economic and financial circumstances of the employer;
  • the anticipated growth or reduction in the employer's workforce during the time period for the goals;
  • the expected turnover of employees in the employer's workforce during the time period for the goals; and
  • labour turnover trends and underlying reasons specifically for employees from designated groups." (my emphasis)


[41]   Form EE8, part of the First Code of Good Practice, reads as follows:

"EEA8

ANNEXURE 1: DEMOGRAPHIC DATA

Demographic profile of the national and regional economically active population

WHAT IS THE PURPOSE OF THE DEMOGRAPHIC PROFILE OF THE NATIONAL AND REGIONAL ECONOMICALLY ACTIVE POPULATION AND WHERE TO FIND THEM?

Statistics South Africa provides demographic data using Labour Force Surveys from time to time. The Labour Force Surveys (LFS) that is [sic] normally released quarterly provides statistics on the national and provincial Economically Active Population (EAP) in terms of race and gender. Employers can access this information directly from Statistics South Africa. This information must be used by employers when consulting with employees, conducting an analysis and when preparing and implementing Employment Equity Plans."

[42]   The 2005 code provides in part that:

"Developing a workforce profile and setting numerical targets for equitable representivity

5.3.9.   A workforce profile is a snapshot of employee distribution in the various occupational categories and levels. Under-representation refers to the statistical disparity between the representation of designated groups in the workplace compared to their representation in the labour market. This may indicate the likelihood of barriers in recruitment, promotion, training and development.

5.3.10.   Collection of information for the workforce profile is done through an employee survey. It is preferable for employees to identify themselves to enable the employer to allocate them to a designated group. Only in the absence of an employee's self-identification, can an employer rely on existing or historical data to determine the employee's designated group status.

5.3.11.   The workforce profile should indicate the extent to which designated groups are under-represented in that workforce in occupational categories and levels. This should be compared to the Economically Active Population at national, provincial or regional, or metropolitan economically active population or other appropriate benchmarks. Employers should set numerical targets for each occupational category and level informed by under-representation in the workforce profile and national demographics. The extent of under-representation revealed by the workforce profile represents the ideal goal reflected as the percentage for each occupational category and level for that workplace.

5.3.12.   Employers, employees and trade unions should prioritise the least under-represented groups within the workforce. For example, an employer in the consultation process should focus more on the areas where the most imbalances appeared during the audit and analysis.

5.3.13.   Numerical targets will contribute to achieving a critical mass of the excluded group in the workplace. Their increased presence and participation will contribute to the transformation of the workplace culture and to be more affirming of diversity. Employers are required to make reasonable progress towards achieving numerical targets to achieve equitable representation. This means that an employer should track and monitor progress on a regular basis and update its profile continuously to reflect demographic changes."


[43]   In addition to the two Codes, administrative regulations have been promulgated in terms of the EEA and these provide in part as follows:

  1. When a designated employer conducts the analysis required by section 19(1) of the Act, the employer may refer to-

    1. Annexure 1 (EEA8), for demographic data; and
    2. Annexure 2 (EEA9), which contains the definitions of occupational levels.

  2. A designated employer must refer to the relevant Codes of Good Practice issued in terms of section 54 of Act as a guide when collecting information and conducting the analysis required by section 19 of the Act."

[44]   Annexure EE8 is again reproduced in 2009 as follows:

"EEA8

ANNEXURE 1: DEMOGRAPHIC DATA

Demographic profile of the national and regional economically active population

WHAT IS THE PURPOSE OF THE DEMOGRAPHIC PROFILE OF THE NATIONAL AND REGIONAL ECONOMICALLY ACTIVE POPULATION AND WHERE TO FIND THEM?

Statistics South Africa provides demographic data using Labour Force Surveys from time to time. The Labour Force Surveys (LFS) that is [sic] normally released quarterly provides statistics on the national and provincial Economically Active Population (EAP) in terms of race and gender. Employers can access this information directly from Statistics South Africa. This information must be used by employers when consulting with employees, conducting an analysis and when preparing and implementing Employment Equity Plans." (my emphasis)

[45]   Looking at the two Codes and the administrative regulations and given that the two Codes contain conflicting provisions in respect of the need to take regional demographics into account, the court must prefer those provisions which support the provisions of the EEA and the Constitution. In my judgment the clear meaning of section 42 of the EEA which guides the administrators of the EEA on how to gauge compliance with it, is that both regional and national demographics must be taken into account. I stress that the fact that national demographics must factor into all employment equity plans provides for a safeguard recognising that is was the African majority in this country that were most severely impacted by the policies of apartheid. However, that regional demographics must be also considered, asserts the right of all who comprise black persons in terms of the EEA to benefit from the restitutionary measures created by the EEA, and derived from the right to substantive equality under our Constitution.

[46]   Where the selection and recruitment process derived from the employment equity policy of the DCS takes no cognisance whatsoever of the regional demographics of the Western Cape, this amounts to discrimination which is not protected by section 6(2) of the EEA or section 9(2) of our constitution. It is therefore unfair.