University of South Africa v Reynhardt (2010) 31 ILJ 2368 (LAC)

Principle:

Where an employer's affirmative action policy provides that when the equity target is reached, selection of a candidate must be on merit alone, it will be unfair discrimination to continue to appoint on racial grounds.

Facts:

The employer was found to have failed to implement its own equity plan correctly. In terms of this plan, once appointments had been made which achieved the proclaimed equity target, the principle of preferential treatment was no longer to be followed and appointments were to be made exclusively on the respective merit of the relevant candidates. The LAC noted that this in itself this fits into the overall idea of equality and its promotion as captured in the Constitution. Compensation was paid to the person not appointed.

Extract from the judgment:

[28]   Appellant's case was based on the commendable aim of redressing historical imbalances and ensuring that the staff of a critical tertiary institution would more broadly reflect the demography of South Africa than had manifestly been the case throughout the country's racist past. For this reason, targets of 70:30 had been set.

[29]   Appellant's employment equity program contained another important provision which read as follows:

"3.Occupational categories and level where demographic profile satisfactory:

In the event where your department/operational unit has achieved a state of balance in a way, please do not bother yourselves to try and do anything then. The University will have to consider applying the principle of the 'most suitable candidate' as and when vacancies have to be filled in such categories and levels. The principle of 'preferential treatment' in view of affirmative action considerations shall not apply in such incidences. The monitoring process will take care and ensure that we do not create skewness again in applying the principle."


[30]   On the appellant's own equity plan therefore, once appointments had been made which achieved the proclaimed equity target, the principle of preferential treatment was no longer to be followed and appointments were to be made exclusively on the respective merit of the relevant candidates. In itself this fits into the overall idea of equality and its promotion as captured in the Constitution.

[31]   In this case, no evidence was placed before the court by appellant to the effect that the respective merits of the two candidates could justify the appointment of Professor Summers over respondent. This point was conceded by appellant throughout the papers and again by appellant's counsel at the hearing before this Court.

[32]   It is important to emphasise, given the importance of employment equity programmes to the transformation of South African society that the resolution of this dispute does not turn on the constitutionality of appellant's equity plan. That plan passes muster in terms of the analysis that I have undertaken. The problem for appellant is that the plan provides expressly when remedial measures are no longer necessary. In other words, this case turns upon an application of appellant's plan to the facts of the case.

[33]   To return to appellant's argument. It amounted to the following: When the equity target is reached, a selection of a candidate on merit alone can only take place if the particular appointment does not alter the ratio of black to white appointments; that is that the ratio does not fall below that provided for in the equity plan. But, on appellant's own version, the target had been reached at the time the appointment of Professor Summers was to be made.

[34]   To the argument that, had respondent been appointed, the required ratio would have then been reduced below the target, there are at least two responses. Firstly, when the appointment of Professor Summers was made, there was another vacancy, that is for the position of Dean of Law. Professor Mare was then the acting Dean of the Faculty of law. In the event that the racial composition of deans and vice deans fell below the targeted ratio, when appellant came to appoint the Dean of Law, it would have been required again to apply the principles of its equity programme and thus would not have been free to appoint purely on merit in terms of clause 3.

[35]   Secondly, appellant's case was flawed, not because of a commendable policy but because of the manner in which it sought to implement its policy in this case. Once the target had been achieved, its own policy announced to all its employees that remedial measures would no longer apply in the making of further appointments. When the appointment of the Dean of Science was made, the required ratio had been achieved and clause 3 of the plan was then triggered. In the event that respondent had been appointed, the equity programme would then have been applicable to the appointment of the next candidate; in this case in respect of the deanship of the Faculty of Law. In summary, appellant failed to correctly implement its particular programme.