Solidarity obo Christiaans and Eskom Holdings Ltd (2006) 27 ILJ 1291 (Arb)
It may not be discrimination nor an unfair labour practice for an employer to distinguish between the different groups within the designated groups listed in the EEA, if it is in accordance with the company’s equity plan and there was a rational connection to a legitimate purpose, namely the advancement of employment equity
Only the applicant, a Coloured male, and an African male were short-listed and interviewed for an advertised position. Both met the minimum requirements but the applicant was awarded the higher points. He was recommended for appointment by the selection panel but senior management awarded the position to the African male. The applicant referred a dispute to private arbitration, claiming unfair discrimination and/or an unfair labour practice relating to promotion. He argued he was part of the EEA’s designated group and was part of a population group which had been previously disadvantaged. The company’s evidence was that, although both Coloureds and Africans were under-represented, Africans constituted only 3,3% in that grade.
The arbitrator’s decision was based on an acceptance of the company’s equity plan, to reflect the demographic profile of the country, and that there was a rational connection to a legitimate purpose, the advancement of employment equity. The arbitrator found there had been no discrimination, nor had there been an unfair labour practice.
Extract from the award:
[At 1306I] The EEA also, in my view, mandates an employer to distinguish between the different groups within the ‘designated groups’. Section 15(1) of the EEA states as follows: (1) Affirmative action measures are 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.’