Court rules in favour of white worker

15.04.2016 11:38

Business Report

Employers will have to be on their guard not to discriminate unfairly against white workers following a ruling by the Labour Court.

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Johannesburg - Employers will have to be on their guard not to discriminate unfairly against white workers following a ruling by the Labour Court against the Tshwane municipality.

The court found affirmative action not based on employment equity plans or staffing policies with measurable numerical targets and properly formulated measures was unfair.

This follows the Solidarity union taking the municipality to court over its failure to promote Jan Pretorius, a water audit officer, to a foreman.

Pretorius applied for the job in 2012. At that time, the metro’s employment equity plan had lapsed as it was merging with two other municipalities before completing its plan for the next five years.

Although Pretorius was given the thumbs-up to be shortlisted, the acting HR director, a Mr Ratsiane, declared the recruitment process null and void because he was white.

He based his decision on a policy signed with trade union Imatu, of which Pretorius was a member at the time. Ratsiane said he had blocked Pretorius based on workplace profile statistics which gave him the impression there were too many white men in the municipality.

He conceded there were no numbers or targets against which he could compare white male representation and also that he did not consider the motivation for Pretorius’s promotion. From time to time, Pretorius had to act in the position he wanted, which was never filled by another employee.

The municipality initially argued that its employment equity policy, adopted in 2013, could be backdated to 2012, justifying the exclusion of Pretorius. However, in court arguments, the municipality’s stance changed, and it said its staffing policy was adequate in determining whether Pretorius qualified for the job.

But in his judgment, Acting Judge AJ Coetzee said the staffing policy was not sufficient in determining that the discrimination against Pretorius was fair as defined in the constitution and the country’s redress laws.

The Employment Equity Act (EEA) requires the employer to include a profile of its workforce in each occupational category and level to determine the degree of underrepresentation of people from designated groups in the workforce. This can be determined only by the adoption of some numerical norm.

Also according to the act, the redress is not meant to function as a quota system, which means there may be no absolute barrier to the future or continued employment or promotion of people who are not from designated groups.

According to Judge Coetzee, the staffing plan did not comply with the EEA because it did not assist Ratsiane as it did not have regard to numerical goals set in accordance with the economically active population. It also did not comply with the act because it did not make for flexible implementation.The court ruled that Pretorius be promoted to the position and compensated the difference between what he earned and what he would have earned if he had been appointed.

THE STAR