Labour Court rules Eskom’s hiring practice is unfair discrimination

The Labour Court has ruled that Eskom’s practice of not shortlisting members of non-designated groups for advertised posts amounts to an absolute barrier and is not an affirmative action measure as contemplated by the Employment Equity Act (EEA).

Judge Hilary Rabkin-Naicker, in a judgment handed down in the Labour Court in Cape Town on Friday, further ordered that “Eskom must take remedial steps to ensure that the said practice ceases”.

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Rabkin-Naicker issued these orders in a judgment to an application brought by Solidarity on behalf of Mr Altus Erasmus.

Eskom discrimination

The judgment referred to the fact that Erasmus was shortlisted for a post graded on Eskom’s “M16 Grade” because he described himself as “African” on the application form, and confirmation from Eskom officials that Erasmus would not have been shortlisted “in that round” of the application process if he had described himself as a “white male”.

Erasmus has been employed by Eskom since 1 August 1988, was appointed as a project manager on “Managerial level M15” by Eskom Enterprises in September 2004 in the transmission telecommunication division, and was transferred to his current position of senior advisor outage coordinator on 1 January 2017.

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Rabkin-Naicker ruled that Eskom had “unfairly discriminated” against Erasmus.

She ordered it to pay him compensation equal to 18 months of his salary at the time he applied for the post of manager for site outage execution at a peaking power station for Eskom’s group technology division.

Solidarity, in a referral on behalf of Erasmus, applied for an order that:

• Eskom unfairly discriminated against Erasmus on the grounds of race;
• The decision not to appoint Erasmus amounted to an absolute barrier and therefore constituted a quota system;
• Erasmus be promoted to the position, vacant position or similar position to that which he applied for and be compensated the amount of the difference in salary and benefits from 1 November 2017 up until now, as if he was appointed;
• Eskom compensate Erasmus to the maximum amount the court deems just and equitable; and
• Directs Eskom to take steps to prevent the same unfair discrimination, or a similar practice occurring in the future in respect of other employees.

Judge Rabkin-Naicker did not issue any order in regard to the costs.

A number of employees, including Erasmus, applied for the post and Eskom then followed a recruitment process to appoint a suitable candidate. Candidates who met the minimum requirements were shortlisted and interviews were conducted.

Hennie Van Staden, Senior Manager: Outage Support and Execution (Peaking), wanted to appoint Erasmus to the post, but Erasmus was not appointed because it was preferred that the person appointed be an African male or a female of any race.

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Erasmus lodged a formal grievance in February 2018, with Eskom indicating that no suitable candidates from the designated groups could be identified for the post.

He requested information in terms of the Promotion of Access to Information Act but Eskom did not comply with this request.

CCMA findings

This resulted in Solidarity on 12 July 2018 filing a referral to the Commission for Conciliation, Mediation and Arbitration (CCMA) on behalf of Erasmus.

The CCMA concluded the conciliation proceedings and issued a certificate of outcome on 6 August 2018 indicating that the matter remained unresolved.

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Valerie Dibela, who is currently employed as a human resources business partner at Eskom Transmission, agreed the decision not to appoint Erasmus had nothing to do with him saying on the application that he is an African but had to do with the fact that the employer said they cannot appoint him because he is a white man.

Dibela confirmed that only specific race and gender groups, as identified in the GA13 staff requisition form, are shortlisted – and agreed that if Erasmus had identified himself as a white male he would not have been shortlisted “in that round”.

She conceded that Eskom’s employment equity policy did not contain a provision dealing with deviations for over-represented candidates.

Erasmus stated that as an employee of Eskom he was not aware of the practice of not shortlisting a member of an over-represented group and learnt that white males could not be shortlisted in the court proceedings.

He was asked why he had indicated that he was an African when applying for the post and stated: “I have never seen in the past any opportunity where I could state that I am a white African because you could only select one of the two.

“So it was my intention, intentionally I selected African. It was not to mislead at all … It was in line with what I was doing, it was in line with my stance, and it was in line with what I was promoting within the business,” he said.

Judge Rabkin-Naicker said Section 6(2) of the Employment Equity Act, whose object is to echo Section 9(2) of the Constitution, is quite explicit that affirmative action measures are not unfair.

However, she added that this does not oust the court’s power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering.

She said there is no valid reason why courts are precluded from deciding whether a valid employment equity plan has been put into practice lawfully.

Rabkin-Naicker said there was no dispute that a white male, in terms of Eskom’s practice of implementing its affirmative action measures, had no possibility of being shortlisted for the post in question.

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She said Eskom insisted that the practice did not amount to an “absolute barrier” because, provided a suitable candidate was not found from an under-represented group, there was the possibility for a wider second round of applications and/or a motivation being made for a particular white male to fill the post.

“It appears to the court that the inflexible and blunt instrument practiced at the shortlisting stage must be recognised as an absolute barrier to the ability of members [of] non-designated groups to compete with employment equity candidates from the inception of a recruitment process,” she said.

An ‘absolute barrier’ 

Rabkin-Naicker said the evidence before her established that an employment practice of Eskom amounted to an absolute barrier to non-designated groups and cannot be regarded as an affirmative action measure in terms of the act.

“There are myriad ways to take equity targets into account during interviews of suitable candidates for a position, without blocking categories of persons from proving their worth to an employer in a recruitment practice and in the process infringing on their rights to dignity and equality,” she said.

In regard to the relief sought by Solidarity/Erasmus, Rabkin-Naicker said this court would not usurp the role of the employer and promote Erasmus.

“Given that I have found that Erasmus was unfairly discriminated against, I will however grant him compensation in an amount that I find to be just and equitable on the evidence before me,” she said.

This article was republished from Moneyweb. Read the original article