On 3 April 2017, Eskom began recruitment for the position of manager for site outage execution at Peaking Power Station for the group technology division (the post), in line with Eskom’s employment equity plans for each of its divisions, including the group technology division. The post required managing the outage execution section to meet Eskom’s business objectives in that area. Erasmus applied for the post, and Eskom followed its recruitment process to appoint a suitable candidate. However, Erasmus was not successful because the guidelines provided by Eskom’s employment equity manager stipulated that the person appointed to the post must be an African male or a female from any race.

In 2018, regarding his unsuccessful application, Erasmus requested information from Eskom under section 18(1) of the Promotion of Access to Information Act 2 of 2000, but Eskom refused. Solidarity then referred an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on behalf of Erasmus. In August 2018, after concluding the conciliation proceedings, the CCMA issued a certificate of outcome indicating that the matter remained unresolved. Solidarity subsequently approached the Labour Court on behalf of Erasmus.

Labour Court

In the Labour Court, the issue was whether Erasmus had been unfairly discriminated against and whether an absolute barrier had been created through the practice of only shortlisting candidates from underrepresented categories of persons.

Section 15(4) of the Employment Equity Act 55 of 1998, as amended (EEA) stipulates that:

“Subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.”

The Labour Court found that Eskom’s shortlisting stage, which prevented Erasmus from applying due to him being from an overrepresented community, amounted to an absolute barrier. The Labour Court stated 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 the recruitment process. No nuance in the practice is observable.

The Labour Court further found that on the evidence established, Eskom’s employment practice could not qualify as affirmative action under the EEA. The Labour Court stated that there are numerous ways to consider equity targets during the process of interviewing suitable candidates for a position without excluding certain categories of persons and preventing them from demonstrating their worth to an employer. Such practices infringe on their right to dignity.

The Labour Court found that Erasmus had been unfairly discriminated against and that Eskom’s practice of not shortlisting members of non-designated groups for advertised posts amounted to an absolute barrier. Furthermore, the measure of excluding members from overrepresented communities was not an affirmative action measure as contemplated by the EEA. Lastly, the Labour Court noted that it would not usurp the role of the employer by promoting Erasmus. Instead, it ordered Eskom to pay compensation in an amount that was just and equitable to Erasmus, and also ordered Eskom to remedy the unfair practice adopted in its recruitment processes.

Key takeaway

Employers need to apply their employment equity plans in a nuanced manner to give effect to the objectives of the EEA. This nuanced approach requires employers to implement employment equity policies in a manner that does not prohibit members of overrepresented communities from applying for available positions within the organisation. Additionally, the Labour Court’s order that Eskom take remedial steps to address the unfair practice of not shortlisting candidates from overrepresented groups supports the argument that employers should not be complacent but should actively ensure that their employment equity plans are applied appropriately.