A section of South Africa’s Employment Equity Act 55 of 1998 deals with affirmative action.
In simple terms, the legislation requires companies and government departments to prefer previously disadvantaged candidates (African, coloured and Indian) over similarly qualified white candidates when hiring. This is done to ensure the overall race, gender and disability profile of an organisation reflects the targets stipulated in the Act from time to time.
As protests mushroom in townships across South Africa, experts are questioning whether the benefits derived from government’s transformation initiatives outweigh the negative impact on service delivery.
It can be argued that a misguided application of affirmative action legislation has resulted in thousands of ’empty” desks at state institutions.
No organisation, public or private, can perform optimally when senior technical and management positions remain vacant because of a shortage of suitable black candidates.
The difficulty with the current ‘transformation at any cost” attitude is demonstrated by a recent ‘question and answer” exchange between the minister of police and the official opposition.
It emerged that the South African Police Service chose not to fill 85% of its recently advertised pilot vacancies rather than employ skilled individuals from ‘out of favour” population groups.
The police service placed only eight pilots, despite receiving 120 applications from qualified white pilots for its 53 vacancies.
The opposition argues that this is a clear case of employment equity and transformation agendas impeding the police service’s ability to provide critical services to the electorate.
Democratic Alliance parliamentarian Debbie Schaefer says: ‘We were contacted by a pilot who is qualified to fly both fixed-wing planes and helicopters, has in excess of 3 000 hours’ flying experience and various other qualifications that are highly beneficial for any organisation.
‘The pilot was initially advised that he would be appointed and later told his appointment had been refused. ‘Refusing to fill crucial police posts when qualified whites were available went way beyond the intentions of affirmative action policy,” says Schaefer.
The Employment Equity Act doesn’t require the minister to appoint a previously disadvantaged individual to every vacant post, but only to align the organisation with employment equity targets over time.
To give effect to the principles of affirmative action and the numeric goals set out in an employment equity plan, suitably skilled candidates from designated groups may be given preference for promotion and appointment.
But the failure to appoint a suitable member from a non-designated group constitutes discrimination too. This is not the first time the minister has been on the spot.
The police service was the respondent in a recent landmark affirmative action case, where the Labour Court determined that its failure to appoint Captain Renate Barnard, a white female, in the position of superintendent of the complaints investigation unit, in circumstances where the police service failed to fill the position at all, constituted unfair discrimination.
The court ruling shattered the longheld belief that affirmative action was a sword in the hands of designated employees and a shield in the hands of employers who face claims from disgruntled non-designated employees.
It also confirms that employment equity plans aren’t the alpha and omega in hiring and promotion decisions. Employers must consider factors such as personal work history and extenuating circumstances too.
Law firm Deneys Reitz notes that ‘the Labour Court decision in the Barnard matter makes it clear employers cannot use affirmative action as an absolute shield, nor may employers apply or give eff ect to the numerical goals set out in an employment equity plan rigidly and without having regard to the overall principles of fairness and the particular circumstances of individuals who may be adversely affected by the implementation of the plan.”
The police service’s next step calls into question the government’s transformation agenda. Instead of accepting the court’s decision, the minister decide to appeal it.