Court slams Eskom for BEE discrimination
A recent judgment by the Labour Court found that Eskom practised unfair discrimination against a white employee with over 30 years at the company.
The court ruled that Eskom’s practice of excluding non-designated groups, including white males, from job shortlists constitutes an “absolute barrier,” breaching South Africa’s affirmative action laws.
“Eskom must take remedial steps to ensure that the said practice ceases,” said Judge Hilary Rabkin-Naicker in the ruling.
Brief background
The case involved AP Erasmus, an Eskom employee since 1988. A new managerial role in the group technology division was created in 2017 to oversee site outages, which Erasmus looked to apply for.
Employment equity officials in the company mandated a preference for “African males and females of all races.”
Erasmus, surpassing the minimum qualifications for the position, was shortlisted after he self-identified as “African” in his application. He told the court that this identification was not to deceive or defraud Eskom – something that the court agreed with.
Although the senior manager favoured Erasmus for the role, he was not appointed due to employment equity requirements.
The HR department informed him that white males were overrepresented by 16% at the level for which he was applying. They expressed concern over the potential missed opportunity to advance a candidate from a designated group.
In the end, the post was not filled, with Eskom saying that no suitable candidates from designated groups could be identified for the job.
Erasmus said the post was “critical” and yet was not being filled, despite his bosses recommending him and him meeting the requirements. Despite assurances, Erasmus argued that he did not get the position because he was white.
As a result, Erasmus lodged a formal grievance. Represented by trade union Solidarity, Erasmus then took Eskom to the Labour Court, arguing it had discriminated against him, based on his race.
“My grievance was against the fact that I was not appointed because of the colour of my skin,” Erasmus said.
Ruling
The judge found that Eskom’s policy was an “inflexible and blunt instrument practised 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.”
The court found no issue with affirmative action policies in general but took issue with Eskom’s implementation of the policy.
What Eskom did, the court found, “cannot be regarded as an affirmative action,” as “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.”
As a result, the court ordered:
- The respondent unfairly discriminated against Erasmus.
- 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 EEA.
- Eskom must take remedial steps to ensure that the said practice ceases.
- Eskom is to pay compensation to Erasmus in an amount equal to 18 months of his salary at the time that he applied for the post in question.
- There is no order as to costs.
The full case can be found here.
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