Solidarity v Department of Correctional Services (CA23/13) [2015] ZALAC 6 (10 April 2015) per Waglay JP and Davis JA.

Both the appeal and cross-appeal were disallowed but with no order ads to costs.  The Labour Appeal Court (LAC) enquired into the constitutional and legal scope of the implementation of positive measures designed to achieve equality through the medium of employment equity plans.   The LAC referred to the uncertainly that remained after the Constitutional Court judgment in SA Police Services v Solidarity obo Barnard (Barnard).   Despite the judgment of the Constitutional Court the law relating to racial quotas and targets and other mechanisms to achieve representivity in the workplace remains uncertain.

The individual appellants, represented by Solidarity, applied for particular posts in the  Department of Correctional Services (DCS).  Most of them were unsuccessful.  They referred an unfair labour practice dispute concerning the failure to appoint or promote and argued that it was discriminatory.  They in effect contended that employment equity plan for the period 2010 to 2014 contravened the Employment Equity Act 55 of 1998.

Rabkin-Naicker J in Solidarity v Department of Correctional Services (C 368/2012, C968/2012) [2013] ZALCCT 38; [2014] 1 BLLR 76 (LC); (2014) 35 ILJ 504 (LC) (18 October 2013) ordered the DCS to take immediate steps to ensure that both national and regional demographics be taken into account in respect of members of designated groups when setting equity targets at all occupational levels of its workforce but dismissed the balance of the application for substantive relief which had been brought by the appellants.  There was no order as to costs.

The individual appellants appealed against the decision to the extent that the Labour Court refused their relief.   A cross-appeal was filed regarding the finding that the plan failed to have regard to both national and regional demographics.   The appeal depended mainly on the interpretation of the appropriate legislation and the application thereof to the plan.

Findings

[59] In summary, the respondents failed to take account of the particular regional demographics of the Western Cape which was a mandatory requirement at the time that the plan was conceived.  The failure to do so could result in a large scale reduction in the workforce of members of the designated group, who themselves had suffered egregious discrimination as a result of Apartheid.  Even if the word “may” is employed in this enquiry, it is our view that, given South African history, the failure to take account of the impact of regional demographics on the nature and purpose of the plan adversely reduces the contribution of restitution towards substantive equality and hence the attempt to achieve the effect goal of developing a non-racial and non-sexist society.  This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.

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[71] In summary, given the paucity of evidence and the time that has lapsed between the central facts that gave rise to this dispute and this appeal, together with the fact that the appellants did not focus their attention on the deviation decision in sufficient detail, this Court cannot grant a remedy of promotion.  For similar reasons compensation for non-promotion is inappropriate.  The issue of damages was neither canvassed nor pleaded.  In light of the lack of certainty as to what outcome would have resulted had regional demographics been taken into account, it would be inappropriate to award damages.

[72] We have carefully considered whether further guidance should be given to respondents in the formulation of a plan that takes regional demographics into account.  However, we are hesitant to attempt a prescription.  Manifestly, recourse to the particular demography of a region should not result in the implementation of a quota.  The animating idea behind these considerations should not be to freeze a pattern of regional demography, which is invariably a product of the vicissitudes of generation of racist rule.  Hence, in the construction of a non-racial and non-sexist nation, the relationship between regional and national demographics requires nuance and flexibility.  It is best left to the respondents to develop an appropriate plan as opposed to a judicial attempt at legislation.