Thekiso v IBM South Africa (Pty) Ltd
The Employment Equity Act provides for a legal challenge by employees alleging unfair discrimination but not for employees alleging that the employer has breached the affirmative action provisions of the Act. The employee is confined to sections 34 to 37, which effectively mean referring the matter to labour inspectors to enforce the Act.
The Applicant, a black woman, was employed with 5 others in the Respondent’s asset management division. Whilst the Applicant was retrenched, certain of her white and/or male colleagues were not. The court was asked to determine whether the Respondent’s alleged failure to consider the requirement of certain of the provisions in Chapter III of the Employment Equity Act 55 of 1998 when conducting the relevant retrenchment exercise and when retrenching the Applicant rendered her dismissal substantively or procedurally unfair. The court found that the dismissal was fair.
Extract from the judgment:
[At para 41] Although the Applicant pleaded reliance on other subsections of the EEA, in argument, Mr Riley ultimately relied only on Section 15(2)(d)(ii). His contention was that, when determining whether or not the Applicant should be retrenched rather than Mr van der Merwe (who was selected for appointment to the new asset management position), the Respondent was obliged to consider the requirements of this section. This obligation existed, he submitted, whether or not the issue of affirmative action was raised by the employee in the course of retrenchment consultations. (It is common cause that the Applicant did not raise the issue in the consultation process.)
42. Section 15 of the EEA must be read together with Section 13(1) thereof, which imposes on every designated employer the obligation to implement affirmative action measures for people from designated groups. Section 15(1) provides that 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. “
This is the setting in which Section 15(2)(d), the provision relied upon by the Applicant, appears. That provision provides as follows:
“(2) Affirmative action measures implemented by a designated employer must include –43. Mr Riley submitted that, if the Respondent was intent upon retrenching employees in the asset management division, Section 15(2)(d)(ii) obliged it to retain the Applicant (a black woman) in preference to any white male, provided she was “suitably qualified” for the available position. I understood him to rely on Section 20(3) in this regard, which provides that a person may be suitably qualified for a job inter alia if she has the “capacity to acquire, within a reasonable time, the ability to do the job”. In other words, I understood it to be Mr Riley’s contention that if the Applicant had the capacity, within a reasonable time, to acquire the ability to do the new asset management job, the Respondent was obliged to select her for that position in preference to a white man such as Mr van der Merwe. Mr Riley made clear, however, that inasmuch as his client’s complaint before me was that her dismissal was unfair in terms of the LRA, he confined his argument for present purposes to a submission that the Respondent had been obliged to consider its obligations under Section 15(2)(d)(ii) when making the relevant decision. He submitted that this obligation to consider arose in terms of Section 189(2)(d) of the LRA (which requires consultation on the method for selecting the employees to be dismissed), Section 189(2)(a)(i) (which requires consultation on appropriate measures to avoid the dismissals), Section 189(3)(b) (which requires disclosure of the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives) and Section 189(3)(d) (which requires disclosure of the proposed method for selecting which employees to dismiss).
subject to subsection (3), measures to –
(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.” (my emphasis)
44. In my view, the argument advanced by Mr Riley as to the meaning and effect of Section 15(2)(d)(ii) of the EEA is incompatible with the judgment of this court in Dudley v City of Cape Town (2004) 25 ILJ 305 (LC). In that case, Tip AJ held that the provisions of chapter III of the EEA on which Mr Riley relies do “not bring about an individual right to affirmative action” (at para ). The learned Judge went on (at para ) to accept the following “key contentions” raised by the employer in the case before him:
“…. namely that the EEA does not establish an independent individual right to affirmative action and also that there is no right of direct access to the Labour Court in respect of any such claim.”
The following portion of the head-note to the report of the decision in the Industrial Court Journal (at 306 G) also conveniently summarises an important finding by the learned Judge:
“By contrast, the structure of chapter III is such that, by definition, it is intended to and can be brought into operation only within a collective environment. This is inherent in the nature of the duties of an employer outlined in Section 13(2). These are consultation, analysis, preparation of the employment equity plan and reports to the Director-General on progress in the implementation of the plan. …… It is very clear from a survey of the provisions of chapter III that its essential nature is programmatic and systematic. Importantly, its methodology is uncompromisingly collective.”
45. Mr Riley submitted that Dudley was wrongly decided and that I should decline to follow it. I do not accept that there is any basis upon which I could conclude that the decision in Dudley was clearly erroneous and I therefore regard myself as bound by it. I note in this regard that Dudley was recently followed by this court in Public Servants Association, on behalf of I Karriem v SA Police Services & Another (unreported Case No C435/04).
46. In my view, it is implicit in Dudley that a retrenched employee cannot pursue a complaint before this court in terms of chapter III of the EEA alleging that her retrenchment constitutes a breach by her employer of its affirmative action obligations. Not only does the EEA not provide any mechanism for pursuing such a complaint, but, in my view, on a proper construction thereof, there is no legal obligation on an employer when taking any particular appointment or dismissal decision to give preference to suitably qualified employees from a designated group. In my view, Section 15(2)(d)(ii) does not impose an obligation on an employer contemplating retrenchments to retain black employees in preference to white employees it believes better meets its needs. Whilst chapter III of the EEA (including Section 15(2)(d)(ii)) plainly imposes legal obligations, those obligations are, in the language of Tip AJ, “programmatic and systematic”. They require consultation on, and the implementation of, an employment equity plan but they do not confer legal rights to preferential treatment on individuals in respect of particular appointment or dismissal decisions.
47. If this is correct, I do not see how an employee who has no right to rely directly on the EEA, can nevertheless have a right to rely thereon indirectly by means of an allegation in an unfair dismissal case brought in terms of the LRA that the employer has failed to consider its obligations under the EEA. If an individual employee has no enforceable right under the EEA, it is my view that no failure on the part of the employer to consider it obligations under the EEA can render a dismissal decision unfair. I simply do not accept Mr Riley’s submission that the subsections of Section 189 of the LRA to which he referred (see paragraph 43 above) impliedly impose an obligation on an employer contemplating a possible retrenchment to consider its obligations under the EEA. In essence, those provisions require disclosure of the employer’s views and intentions and consideration by the employer of any views or submissions raised in response thereto by the affected employees. None of them expressly oblige the employer to consider any provisions of the EEA and I do not think that they do so by necessary implication either.
48. I stress that it is common cause in this case that neither the employer nor the employee contended, during the consultation process, that affirmative action considerations should play any role in the retrenchment selection process. I am therefore not called on to consider whether the Respondent would have been entitled, rather than obliged, to take race or gender into account when selecting the employees to be dismissed. Nor am I called upon to consider what the legal position may have been if the Applicant had, in the consultation process, raised the contention that she should be given preference on the basis of her race or gender in the selection process.
49. The Respondent drew my attention to the following statement, in the recent judgment of Revelas J in Robinson & Others v Price Waterhouse Coopers  5 BLLR 504 (LC) at para :
“Affirmative action is not and never has been legitimate ground for retrenchment.”
This statement was made in the process of rejecting an employer’s argument that a retrenched, white employee had been fairly selected for retrenchment. That is not the situation in the present case. However, if it was the learned Judge’s intention to assert that the EEA does not impose an obligation on an employer who employs both black and white employees to retrench white, rather than black, employees, I respectfully concur with her.