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Eskom’s barring of white ‘African’ jobseeker is unfair discrimination

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Marthinus van Staden is Associate Professor at the Wits University School of Law, where he teaches Jurisprudence and Labour Law. He obtained his doctorate in Labour Law from the University of Pretoria in 2018.

The Labour Court has found that Eskom’s not shortlisting a white candidate did not qualify as an affirmative action measure under the Employment Equity Act.

In his iconic “I am an African” speech, Thabo Mbeki eloquently captured the essence of African identity, transcending the boundaries of race, ethnicity, and nationality.

He proclaimed, “I am an African. I owe my being to the hills and the valleys, the mountains and the glades, the rivers, the deserts, the trees, the flowers, the seas and the ever-changing seasons that define the face of our native land,”

This powerful statement reminds us that our connection to the land, shared history, and common destiny as Africans shape our identity. It is through this lens that we must examine the recent case of Solidarity obo Erasmus v Eskom Holdings SOC Ltd, where issues of discrimination, affirmative action, and the quest for equality in the workplace came to the fore.

In the case, the employee (“Erasmus”) had been employed by Eskom since 1988, where he rose through several positions. As a designated employer under the Employment Equity Act 55 of 1998 (EEA), Eskom implemented employment equity plans for each division, including an advertised senior vacant post. Erasmus applied for this position.

During the recruitment process, Eskom’s practice was to shortlist only candidates from under-represented groups based on the company’s employment equity requirements. For this post, the employment equity manager indicated that African males or females of all races should be considered.

The employee was shortlisted and interviewed for the position. However, it later came to light that he was shortlisted because he had described himself as “African” in his application despite being a white male. If he had identified himself as a white male, he would not have been shortlisted due to Eskom’s practice of excluding over-represented groups, such as white males, from the shortlisting process.

After the interviews, Erasmus and another African male candidate were recommended for the position, and they underwent psychometric assessments. The final decision was to appoint Erasmus. However, Eskom’s HR department intervened, stating that they could not appoint a white male due to employment equity targets and the aim to create a pipeline for senior management positions.

Discrimination claims

Erasmus lodged a grievance, claiming he was unfairly discriminated against based on race. The case was referred to the Labour Court, where the employee’s union, Solidarity, sought an order declaring that Eskom had unfairly discriminated against him, that the decision not to appoint him amounted to an absolute barrier and a quota system and that Erasmus should be promoted to the position or a similar one and compensated accordingly.

The Labour Court held that Eskom’s not shortlisting candidates from over-represented groups, such as white males, constituted an absolute barrier to non-designated groups and did not qualify as a valid affirmative action measure under the EEA.

In SA Police Service v Solidarity on behalf of Barnard, it was held that affirmative action measures must be designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels. The measures may include preferential treatment and numerical goals but must exclude quotas.

The primary distinction between numerical targets and quotas lies in the flexibility of the standard, with quotas amounting to job reservation and being prohibited by section 15(3) of the EEA. This distinction was explained recently within the context of Dischem’s now-abandoned moratorium on white appointments.

Read more in Daily Maverick: More SA companies may be forced to pause hiring and promoting white people

The Labour Court found that Eskom’s inflexible and blunt instrument practised at the shortlisting stage was an absolute barrier, preventing non-designated groups from competing with employment equity candidates from the inception of the recruitment process. This practice was not consistent with the purpose of the EEA.

The decision not to appoint the employee was based on race under section 6 of the EEA and amounted to unfair discrimination. Eskom could not establish that section 6(2), which permits affirmative action measures consistent with the purpose of the EEA, applied in this case due to its reliance on an employment practice that created an absolute barrier.

While Erasmus may have been disingenuous in describing himself as “African” in his job application, his conduct did not amount to fraud or dishonesty that would disentitle him to relief under the “clean hands” doctrine.

Judgment

The court found that there are various ways to consider equity targets during interviews without blocking categories of persons from proving their worth to an employer in a recruitment practice which would infringe upon their rights to dignity and equality.

The court therefore ordered Eskom to compensate the employee in an amount equal to 18 months of his salary when he applied for the position. Eskom must also take remedial steps to ensure that the discriminatory practice of not shortlisting candidates from over-represented groups ceases.

The Labour Court’s findings relied on fairness, equality, and the proper application of affirmative action measures outlined in the EEA and relevant case law. The court sought to balance the need for redressing past inequalities with the prevention of unfair discrimination and the infringement of individual rights to dignity and equality in the workplace.

However, the Labour Court’s decision not to reinstate the employee in the position he applied for may be problematic, given the close connection between a person’s work and their sense of self-worth and dignity.

In many cases, monetary compensation alone may not adequately address the harm caused by unfair discrimination in the workplace. Being denied a job opportunity based on one’s race can have a profound impact on an individual’s self-esteem, mental well-being and overall sense of belonging within the organisation.

Reinstatement could have served as a more meaningful remedy, allowing the employee to take up the position he was qualified for and had successfully applied for, thus restoring his dignity and sense of fairness.

Moreover, reinstatement would have sent a stronger message to the employer about the importance of ensuring fair and non-discriminatory recruitment practices. It could have encouraged Eskom to critically examine and reform its policies to prevent similar instances of unfair discrimination in the future.

However, it is important to consider the practicalities of reinstatement in this specific case. The Labour Court may have considered factors such as the time elapsed since the initial recruitment process, changes in the organisational structure, and the potential impact on the current employee holding the position. Reinstatement after a significant period may not always be feasible or conducive to a harmonious working environment.

Thabo Mbeki reminded us that “whatever the circumstances they have lived through and because of that experience, [Africans] are determined to define for themselves who they are and who they should be”. This case underscores the importance of striking a delicate balance between redressing past inequalities and ensuring that the dignity and rights of all individuals are respected in the process.

While affirmative action measures are crucial for achieving equitable representation in the workplace, they must be implemented fairly, flexibly and must not create absolute barriers for any group.

As South Africans, we must work together to build a society where every individual, regardless of their race or background, has an equal opportunity to prove their worth and contribute to the growth and development of our nation.

Only then can we truly embrace the spirit of ubuntu and create a future where all Africans can proudly proclaim, as Mbeki did, “I am born of a people who are heroes and heroines. Patient because history is on their side, these masses do not despair because today the weather is bad. Nor do they turn triumphalist when, tomorrow, the sun shines”. DM

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Comments - Please in order to comment.

  • Zamfoot 1 1 says:

    Do we stop refiring to persons of African desent in Europe as… British, French or German etc, based on the colour of their skin ?

    Correct .. total unexceptible, both in Europe as it is here !

  • Agf Agf says:

    If you consider the absolute dwang which Eskom finds itself in, they should be taking the very best of the best regardless of colour. Perhaps they should take a leaf out of the books of their friends up north. The Arab States like Saudi and Bahrain, employ thousands of expats, Americans, Brits, Australians and yes white South Africans to run important plants like water, sewerage, electricity, etc. BEE has failed. Admit it and move on.

    • Andrew W says:

      By the time you take your employer to court, your career there is long gone.

      BEE is racism. A law that promotes and protects the majority against the minority is just, well silly at best but ridiculous.

      As South Africans, if we continue drive our country using the rear view mirror, we’ll carry on having crashes and accidents. Our fellow Africans in Nigeria, Ghana, Kenya,Rwanda have moved on and are building their countries for themselves and their kids and generations of kids.

      Let’s embrace excellence and growth, a rising tide lifts all boats, no matter what color they are painted.

  • Trenton Carr says:

    National Ubuntu never existed, never will, sure there are pockets of tribal Ubuntu and that can be seen all over the world also. I also identify as a white African and anyone that has issue with that should blame the people who shipped my German Jewish WW2 orphan grandmother to South Africa without her consent.

  • A B says:

    Ubuntu is just a word. BEE is racist, systemically racist and unconstitutional. So is AA. We’ve already had ruling from the US on its illegally and it’s noted racist policy. This must change in SA otherwise it will be the black race who pays once again for their unaccounted racism they are known for

  • Ben Hawkins says:

    As a born South African I can refer to myself as an AFRICAN.

  • Anton van Niekerk says:

    If race is an unfair criterion when shortlisting candidates for a job, does that mean it is unlawful to ask a person to classify themself when applying. Surely it is irrelevant at the application stage and creates a reasonable apprehension of bias on the part of the job applicant. Interesting cases to follow.

  • Salatiso Mdeni says:

    Affirmative Action, in all forms must end!

    State-sanctioned racial & gender discrimination has failed the ‘born free’ generation, leaving them in the shackles of poverty and crime.

    Redress provisions aren’t in the best interests of the child.

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