IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
Case no: D 1681-17
Reportable/Not Reportable
In the matter between:
ETHEKWENI MUNICIPALITY Appellant
and
YOGAN NADESAN First Respondent
CCMA Second Respondent
BESS PILLIMER N.O. Third Respondent
Application heard: 5 November 2020 (via Zoom)
Judgment Delivered: 3 February 2021 (electronically)
Summary: Unfair discrimination – affirmative action measures - whether
rationality and/or fairness (a standard less deferential to the stand-alone
designs of an employment equity policy) is the appropriate test in assessing
the individual implementation of affirmative action measures – whether the
complainant is required to attack the employment equity plan
JUDGMENT
WHITCHER J
Introduction
[1] This is an appeal in terms of section 10(8) of the Employment Equity Act
(“EEA”) 55 of 1998 against the Third Respondent’s arbitration award that Mr
Nadesan was unfairly discriminated against.
[2] Nadesan’s complaint concerned an affirmative action measure: a decision by
the Appellant not to appoint him (the highest scoring candidate) to the post of
Senior Storekeeper, Fire and Emergency Services on the basis that Indian
males are over-represented in the relevant occupational level. By declining to
appoint Nadesan and by re-advertising the post, the Appellant claimed that it
was holding out for a suitable candidate from an under-represented racial and
gender demographic to later apply.
The evidence
[3] During June/July 2016, the Appellant advertised the post in question. It had
been vacant for more than a year.
[4] Mr Ravidutt, a senior manager in the Unit and the chairperson of the selection
panel testified and explained the nature of the post. The essence of his
evidence is that the post is a critical and highly technically skilled post.
Firefighters must have the appropriate gear in order to be safe, and it is the
responsibility of a Senior Storekeeper to procure for the department and issue
appropriate firefighting gear and uniforms to the firefighters. The position also
requires in-depth knowledge of specialised firefighting equipment and
uniforms, which can only come gradually through experience, working up from
the rank of storekeeper. Due to this, there are a limited number of possible
candidates. Given the critical nature of the post and it’s vacancy for over a
year, the need to fill it had been urgent. He had two Senior Storekeeper
vacancies at the time and their vacancy was impacting on the functionality of
the Fire Service department. 1
1 Ravidutt’s testimony was not disputed when he was cross-examined by the Appellant’s
representative. The cross-examination focused on the duty of the selection panel to consider
demographics, an insinuation that they had not and, if they had, they would have appreciated that the
[5] There was also reference to a newspaper article written around the time of the
arbitration hearing (July 2017) in which the Security and Emergency Services
Portfolio Committee lamented the delays in the procurement of protective
gear for firefighters.2
[6] The selection panel recommended Nadesan for appointment to the post. He
had had had fifteen years of experience in the post and there was upwards of
a 40% - 50% difference between his scores and the other shortlisted
candidates in the written examination and interview questions.
[7] The Appellant had an employment equity plan in place at the time. The racial
and gender representivity in the Emergency Services Cluster reflected that
Indian males were oversubscribed by 505, Indian females by 108 and African
males by 1038. White males were undersubscribed by 253, White females by
211 and African females by 1411.
[8] Presumably conscious of the extreme under-representation of African females
in the cluster, the selection panel indicated in their motivation that that there
was no suitable African female for the post but there were other occupational
level 2 posts in the Cluster that could easily be filled by African females to
address under-representation.
[9] The recommendation of the selection panel was not approved by the Head of
the Fire and Emergency Unit, Mr Mchunu, who declared a non-appointment
and that the post be re-advertised as a matter of urgency in order to attract
“suitable candidates”. The post was re-advertised a few weeks later.
[10] Mchunu explained his decision to the Commission as follows:
…the post had been vacant for just over a year…and we were only
filling it for the first time since then. So we had no urgency to overlook
the need for the employment equity on the basis that we were
“most appointable in terms of the demographics in order to comply with the equity requirements” were
“African males”. This, in the face of the Appellant’s own documents which demonstrated that African
males in the Cluster were also oversubscribed, far more so than the Indian group.
2 See: Nadesan’s testimony.
advertising that post for the first time…So I wanted us to get a second
opportunity of seeing whether we can attract candidates of a suitable
demographic…
[11] Nadesan’s representative, clearly suggesting Mchunu had in mind African
females asked Mchunu if there were African females in training who could fit
the bill. Mchunu confirmed that there were none. Notably, he did not dispute
the obvious suggestion.
[12] Regarding whether the post required a person with in-depth knowledge of
firefighting equipment, Mchunu said:
“…once a person is appointed to that post it is expected of that person
to become familiar with all the processes and that equipment…3
[13] Mchunu further testified that he did not expect the requirements of the job,
including 24 months experience, to be relaxed for the next round.
[14] As counsel for Nadesan noted, Mchunu had no specific reason for believing
that there would be a suitably qualified person from an under-represented
group in the next round. There was no evidence that anyone from an under-
represented group was in training who could fit the bill. There was no
evidence that any African female even applied for the job in the first round.
[15] The demographic representivity within the municipality is divided into various
occupational levels and the Plan sets various targets within these
occupational levels across the municipality. The targets are not divided into
different departments or clusters within the municipality. The post of Senior
Storekeeper is a Task Grade 7 post which falls within occupational level 2
within the municipality.
[16] Mchunu’s evidence did not address the point implicit in Ravidutt’s earlier
testimony that any appointment of African females within occupational level 2
anywhere in the municipality would have a positive impact on the equity target
within that occupational level and address the under-representation of African
females identified by the equity plan.
3 Emphasis added.
[17] On Nadesan’s version, the alleged unfair discrimination was that he more
than qualified for the post and essentially participated in a charade:
“I feel its discrimination to go through the entire process of shortlisting,
interviewing, verification and then be told that it is a non-appointment. If
they were looking for a certain gender or race, they why put me through
all that, why waste my time. Because you know that you are not going to
take me at the end of the day, why play with people’s emotions, why play
with people’s rights. Make it known”.
Was Nadesan was required to attack the employment equity plan?
[18] The Appellant alleges that the Commissioner could not find that Nadesan was
unfairly discriminated against in the absence of an attack on the employment
equity plan. In doing so, it relied on the Constitutional Court decision in
Barnard4. I agree with counsel for Nadesan that Barnard did not hold that
employees may not challenge decisions purportedly implementing an equity
plan without challenging the plan itself. Such a conclusion would lead to the
bizarre situation that an employee would be denied the right to allege unfair
discrimination each time a decision was taken purportedly in terms of a
perfectly valid and acceptable employment equity plan.
How the lawfulness of an employment equity measure should be tested
[19] A survey of the case law that emerged in the case of Barnard as it wound its
way through the courts reveals two distinct positions on how the lawfulness of
an employment equity measure should be tested.
[20] On the one side, the view is that as long as an affirmative action measure is
rationally connected to addressing identified demographic imbalances, such a
measure should not be interfered with on behalf of those negatively affected
by the restitutionary measure who cry unfair discrimination.
[21] If rationality were the sole consideration, Mchunu’s restitutionary measure
would relatively easily pass the test. I set out some of the preceding,
4 South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).
qualifying issues an adjudicator would have to consider later in the judgment.
But once these questions are positively decided, the rationality of the decision
is all but established. This is why the rationality standard is said to be
deferential to the employer’s equity plan. It is only the plan’s internal logic and
validity that the court must consider and not the plan’s effect.
[22] The other view of the appropriate standard of lawfulness of a restitutionary
measure is that, while rationality is always a necessary attribute of any lawful
decision, it is not the sole ground. An equity measure that may rationally
advance demographic representivity in general may nevertheless be executed
in particular ways and circumstances where the decision unfairly infringes
upon the dignity, right to equality and other legitimate interests of the non-
appointed candidate. Moreover, factors such as the effect of the
implementation of the restitutionary measure on service delivery and staff
morale may also be taken into account in assessing a decision’s essential
fairness. The fairness test thus admits and is sensitive to contextual
considerations that may render unlawful a decision which otherwise serves to
advance demographic representivity.
[23] In my view the second approach was finally sanctioned by the Constitutional
Court in Barnard.
[24] Before the CC, Barnard “accepted that the Employment Equity Plan in
question was a valid affirmative action measure. Equally, she did not impugn
the validity of the [Commissioner’s] Instruction. She never contended that
either of the two were suspect and should have attracted a presumption of
unfairness. For the majority, the effect of this concession was that “the gut of
the complaint is that in declining to appoint Barnard, the National
Commissioner made an unlawful and unreasonable decision which must be
set aside.” In other words, Barnard’s case was an attempt to review the
decision of the National Commissioner. That had never been part of her case
and the court found that to allow her to pursue it for the first time in the
Constitutional Court was unfair and impermissible. In any event, this review-
minded dispute had no merit because, in their view, nothing showed the
National Commissioner to have unreasonably exercised his discretion to
decline Barnard’s appointment. The post was not critical, her non-appointment
would not have sacrificed service delivery, the National Commissioner’s
decision did not show him to undervalue Barnard’s competence when
weighed up against the need for representativity, the National Commissioner
did not apply the employment equity measure too rigidly so that it amounted
to job reservation when he declined to appoint her, and Barnard was well
aware that her application was subject to the application of affirmative action
measures that might preclude her for attaining the position even were she to
emerge as the most meritorious candidate.
[25] Regarding the two approaches described earlier on, while the majority
proposed rationality as a bare minimum standard for the lawfulness of a
restitutionary measure taken in terms of the EEA, they chose not to finally
decide the issue.
[26] The Court held:
“As a bare minimum, the principle of legality would require that the
implementation of a legitimate restitution measure must be rationally related
to the terms and objects of the measure. It must be applied to advance its
legitimate purpose and nothing else. Ordinarily, irrational conduct in
implementing a lawful project attracts unlawfulness. Therefore,
implementation of corrective measures must be rational. Although these are
the minimum requirements, it is not necessary to define the standard finally.”5
[27] The minority judgment on the other hand addressed the issue directly and
determined that fairness was also an element of the lawfulness of a
restitutionary measure.
[28] The Court held:
“Assessing the fairness of the individual implementation of affirmative action
measures is different to deciding whether those measures amount to unfair
discrimination. The latter enquiry is at the general level of determining
whether the formulation and content of a restitutionary measure are
5 At paragraph 39
constitutionally compliant. The former enquiry examines whether a specific
implementation of a measure that is constitutionally compliant in its general
form is nevertheless in conflict with the provisions of the Act. We must insist
that the specific implementation as well as the general formulation of remedial
measures be fair.
We must therefore determine whether the National Commissioner's decision
not to appoint Ms. Barnard was a fair implementation of the Plan. In doing so,
we examine both the objective facts of the case and the reasons the National
Commissioner gave for his decision. Here, we also differ from the main
judgment, which says that an evaluation of these reasons is not before the
Court.”6
[29] As counsel for Nadesan submitted, the majority set out a minimum standard
which was elaborated on in the minority judgment.
[30] The minority judgment considers the question of the lawfulness of a
restitutionary measure primarily through the lens of the EEA and not the
Constitution7. With a statute in place to give effect to the constitutional right to
equality, it is the structure and wording of this statute that should be
considered in the main when interpreting whether an equity measure is
permissible or not. The Constitution is a primary aid in the purposive
interpretation of the EEA8, but the EEA is capable of limiting or qualifying the
right to which it gives expression. We also further know from SANDU9 that
“where legislation is enacted to give effect to a constitutional right, a litigant
may not bypass that legislation and rely directly on the Constitution without
challenging that legislation as falling short of the constitutional standard”. The
same principle also obviously applies to judges.
6 At paragraph s101-102
7 My citing the minority judgment of the CC in Barnard is done on the basis that this judgment
provides guidance (and persuasion) in matters that went beyond the scope of the judgment of the majority. Obviously, to the extent that the minority judgment contradicts any of the views of the majority, this court is bound by the latter. 8 Section 39 (2) of the Constitution states: “When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” 9 South African National Defence Union v Minister of Defence and Others 2007 (8) BCLR 863 (CC) at
para 51
[31] An employment equity plan is a measure contemplated by the EEA, which in
turn is a statute giving expression, perhaps with limitations, to the
constitutional right to equality. Restitutionary measures in employment equity
plans are not to be directly assessed against constitutional provisions. An
adjudicator must consider an equity plans’ compliance with the applicable
statute, albeit with the constitution in the background as an ever-present
interpretive tool. Should the provisions of the EEA on affirmative action be
unequal to the task of enabling equity plans which provide substantive
equality to employees, this would constitute a separate challenge for the
courts. Judges should, however, observe and be contained by this hierarchy
of law and, as it were, chain of command. Viewing restitutionary measures
primarily through the lens of the EEA makes a difference because it is easy to
mistake employment equity plans as constitutionally mandated tools in a
designated employer’s hands to ensure compliance with the injunction to
ensure equality, as opposed to statutorily mandated tools to achieve equitable
employment practices and representivity in workplaces.
[32] The EEA operates within workplaces. The world of work is inherently one of
balancing interests in on-going relationships and not very often solely about
the assertion of free-standing individual rights. The EEA expressly requires a
consideration of the impact restitutionary measures may have on all parties,
including those negatively affected by them. The CC minority judgment points
this out:
Finally, the Act insists on affirmative action measures “based on equal dignity
and respect of all people”. In doing so it reiterates dignity’s fundamental
constitutional importance, both as a right and underlying value, in compliance
with which the Act must be interpreted. Generally speaking, the advancement
of those previously disadvantaged marks the equal dignity of all. But
affirmative action measures can also undermine the dignity of those
negatively affected by them. The Act requires us to be vigilant against that
threat. And, of course, an applicant’s merit cannot be disregarded, especially
when it affects the SAPS’s ability to provide a vital public service efficiently.
[references excluded]
[33] The concept of equity in the EEA denotes the quality of fairness or
impartiality. At its heart, fairness is a relational concept, favouring in its
outcomes, a balancing of interests and not the attainment of rights without
reference to others. Attaining balance is what the minority in the CC judgment
in Barnard alerted to by saying:
“We must therefore formulate a standard specific to the Act, one that is
rigorous enough to ensure that the implementation of a remedial measure is
“consistent with the purpose of [the] Act” – namely, to avoid over-rigid
implementation, to balance the interests of the various designated groups,
and to respect the dignity of rejected applicants.
For these reasons, we consider the appropriate standard to be fairness.
Unlike mere rationality, it is sufficiently encompassing to allow courts to
assess consistency with the provisions and purposes of the Act, which
recognise the importance of “fair treatment in employment”.
A practical test
[34] With the above in mind, it is possible to formulate a practical test for the
lawfulness of restitutionary measures taken in terms of the EEA.10 These are
measures which take the form of preferential treatment of members of a
designated group.
[35] In the first instance, an adjudicator of an unfair discrimination claim should
satisfy themselves that the decision was rational. Next is a consideration of
factors that may render a rational decision unfair. It is difficult to draw a
precise line between rationality and fairness, which is why a distinction
between internal and external factors is conceptually preferable. This
distinction coincides largely with the distinction between rationality and
fairness and is easier to apply.
[36] Internal factors deal with the validity and scope of the equity plan, its internal
logic, rationality and compliance with the EEA and the factual accuracy of the
information the decision-maker relied upon. For instance:
10 I mostly undertake this task for Commissioners who have now been tasked with the difficult issue of
unfair discrimination and affirmative action disputes.
(a) Where the restitutionary measure has no logical chance of addressing the
identified demographic imbalances, it may be irrationally applied.11
(b) If the equity plan was not in force when it was applied, the resultant decision
must be irrational.
(c) If an equity plan imposes quotas it would not be in compliance with the EEA,
therefore be invalid, and thus be irrationally applied.
(d) If the demographic statistics upon which the restitutionary measure was
based were substantially wrong, the restitutionary measure is irrationally
applied.
(e) If demographic targets in the occupational category have already been met,
then the continued provision of preferential treatment to members of
designated groups goes beyond ‘equitable representivity’ and the measure is
thus probably irrationally applied.
(f) If the employee negatively affected by implementation of the equity plan was
not in fact Indian but African female or was Indian but was also a member of
another equally underrepresented group (female or disabled), the
restitutionary measure applied against him may have been irrationally applied.
[37] Second, an adjudicator should assess whether any countervailing evidence
exists that may, notwithstanding the rational application of the equity
measure, establish greater external harm to affected parties than the redress
the measure would provide to designated groups. This is not a matter of
comparing apples with apples. The fact that an employment equity measure is
rational is weighty. To extend the metaphor, rationality is a brick against which
a number of rather weighty fairness apples must be placed to lift and displace
it. Far from the fairness standard lacking deference for the employer’s
decision-making or equity plans, once the implementation of a plan is held to
be rational, a presumption should apply that this measure was also fairly
11
This category may, at first glance, straddle the internal versus external, and rationality versus fairness divide. For impossibility of outcome to constitute a rationality concern, I envisage a situation where an employer decides to re-advertise a post well-aware that it has no pipeline of suitable candidates from the designated group. The decision to re-advertise is irrational as it cannot address the problem. The employer, logically, needs to take prior steps to create a pool of suitable candidates for the post, before effectively freezing it.
executed. An adjudicator considering the complaints of the unfair effects of a
restitutionary measure should bear closely in mind that an individual’s
disappointment cannot lightly outweigh the overarching social necessity for
transformation in South African workplaces. In almost all balance of harm
tests, the interests of the group tend to trump the interests of the individual.
For an individual’s rights to prevail over rationally applied policy, the
individual’s harm must be concentrated, sustained, extensively prejudicial to
his or her rights and/or should probably also align with the public interest.
[38] The evaluation of the fairness of an equity measure is done on a case-by-
case basis, sensitive to the context and nuances of the proven facts. It should
be borne in mind that an employer may also have recourse to fairness
arguments to further substantiate a rationally implemented equity measure.
Against assertions that an employee’s dignity was negatively affected, an
employer may raise the point that attaining demographic targets is essential to
attaining BBBEE scores in terms of preferential procurement laws and
sectoral codes. In such a case, the external effect of an employer’s failure to
apply a restitutionary measure will likely far outweigh the external effect on the
employee’s feelings.
[39] What fairness considerations could rebut the presumption created by
rationality mentioned above?
(a) The realistic prospects of finding a suitable candidate to fill the position from
within the ranks of the under-represented group. Where a restitutionary
measure has a speculative, distant or delayed chance of addressing
representivity it may be unfair to apply it. For example, assuming that (white)
females are under-represented as SBV drivers in Ulundi but that they exist
elsewhere in the company, evidence of the historically absent application rate
from this demographic group may suggest that it is unfair to delay any longer
appointing the most meritorious male applicant. It is not irrational for the
employer to hold out for a white female applicant, because they do exist. It is
rather that, given past experience, such a prospect is so distant that the
decision to deny the job to the most meritorious existing candidate in Ulundi
by re-advertising is unfair in its effects.
(b) As with Barnard, the number of times an aggrieved employee has been
assessed the most meritorious candidate but been denied the post, is a
fairness consideration. This is because the negative effect on an individual’s
dignity in being rejected based on an attribute such as race and gender is
compounded the more often in their career with the same employer this
happens.
(c) The extent of the under-representivity. If, for example, African men were a
mere 1% over-represented when an African man was denied a promotion
based on his race, considerations of fairness may well trump a dogmatic and
formalistic (albeit rational) application of the equity plan when viewed against
the effects of this decision on the candidate’s career-progression.
(d) The extent of relative differences in performance scoring. A male candidate
who scored 99 in an interview where the nearest female contender scored 50
has better grounds for claiming an unfair application of an affirmative action
measure when he is overlooked. This is particularly where the position in
question is not an entry level job but a senior one where a significant
difference in scores reveals the qualitative superiority of a candidate. The
claim of unfairness would rest on the fact that the EEA envisages targets and
not quotas. As such, an employer has room to deviate from hiring targets, and
to justify this to the regulator. Where a candidate is exceptional, such as
where a proverbial Einstein applies for a University job, it may be unfair not to
appoint him.
(e) The amount of time the aggrieved party has been expected to act in the
vacant position or to substantially fulfill its functions, and is still expected to do
so, attendant on his non-appointment. If an employee has acted for two years,
applies for the post, is scored the highest but not appointed and then asked to
act for another year while an equity candidate is sought, this may be a
consideration relevant to the fairness of the implementation of the plan.
(f) The subjective experience of the aggrieved employee of the non-appointment
as an affront to his or her dignity, status, and morale. While individual feelings
alone cannot impede the rational application of important social policies,
evidence as to the effect of these policies on human beings cannot be ignored
either. This is particularly within those employers, such as the public service,
who have explicitly accepted the duty to treat employees with respect, dignity
and to be transparent and responsive to them in regard to decisions that
affect them.
(g) Unfairness may also be inferred from the external effects on persons other
than the complainant. For example, during COVID, the under-representation
of female, coloured pulmonary specialists at a hospital could hardly be held
out as a fair reason not to appoint an available Indian doctor to a one-year
contract position. In Barnard, the effect of her non-appointment on service
delivery and whether the post was critical, were external factors affecting an
assessment of the fairness of the decision. Passing her over was not an
internal factor affecting the rationality of the decision12. It was unfair because
she was needed. Barnard essentially argued that because the post was
critical, the decision not to appoint anyone demonstrated the unfairness of her
treatment.
(h) As mentioned above, the employer may also advance arguments on why,
notwithstanding an employee’s unhappiness, the implementation of an equity
measure would, on balancing all the interests at stake, be fair. For instance,
the need to advance its BBBEE scores and preserve its business will tend to
outweigh individual infringements of dignity.
Application of the fairness test to Nadesan’s case
[40] On the rationality leg, the accepted evidence was that the Appellant had no
pipeline of African female employees at an occupational level from which they
could logically be drawn. (I find that this was, in all probability, the profile of
employee that the Appellant would have been holding out to appoint if indeed
12
It would have been an irrational, internal flaw if the equity plan provided for the by-passing of demographic targets in cases where the post was critical and this provision of the plan was not complied with.
equitable representivity was its goal.) Being aware that no suitable candidates
from this under-represented group existed, it would have made no sense to re-
advertise the post one more time as a means to achieve their equitable
representation. If the Appellant had withdrawn the advertisement altogether, the
irrationality of its response would not have arisen. Indeed, a rational response
to its conundrum was to focus on creating a layer of appointable employees
from under-represented groups for work in the Stores section and only then to
run another advertisement. To the extent that Nadesan was denied
appointment on the basis of the restitutionary measure of a re-advertisement to
occur within a year, this was, on the evidence, irrational.
[41] It was also irrational considering the importance of the job and the availability of
other positions in the occupational level for equity considerations.
[42] I am also mindful of the questions put to Ravidutt in cross-examination,
presumably on the instruction of the Appellant. These questions proposed that
African men would have been the “most appointable in terms of the
demographics in order to comply with the equity requirements”. If this was the
reason the Appellant advanced before the Commissioner for declining to
appoint Nadesan, it also marks the decision with irrationality. This is because
the Appellant’s own documents demonstrated that African males in the Cluster
were also oversubscribed, far more so than the Indian group. As I have found
above, reliance on inaccurate statistics is an internal flaw in the implementation
of a restitutionary measure.
[43] The irrationality of the implementation of the measure, disposes of the appeal
which must be dismissed.
[44] Were there no internal rationality issues, I doubt fairness would have dictated
an interference with the Appellant’s decision. While Nadesan was by far the
most meritorious candidate, this would only have been the first time the post
was re-advertised. His description of the subjective harm he experienced in the
non-appointment was refreshingly honest if rather nonchalant. He mainly
resented the waste of his time. While the evidence established the importance
of filling the post, there was not enough of it to show that it was truly critical, so
as to lift the presumption of fairness that would have flowed from a prior finding
that the equity measure was rationally applied. As already stated, though, it is
at this prior hurdle that the Appellant’s case faltered.
[45] In the premises, the appeal is dismissed with costs.
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
APPELLANT: L Naidoo, instructed by Kathy James Attorneys
FIRST RESPONDENT: CS Bosch, instructed by Macgregor Erasmus Attorneys
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