In Solidarity obo Benjamin v Department of Correctional Services and Others, the Labour Court reviewed and set aside an arbitration award dismissing an employee’s unfair labour practice claim. The dispute concerned circumstances where the Department’s selection panel had strongly recommended Ms Benjamin, a person classified as a ‘coloured female’, for promotion, but the Department declined to appoint her on the basis that the appointment would not align with its employment equity (EE) targets.
The arbitrator accepted the Department’s explanation that its employment equity plan (EEP) focused on national targets (where coloured females were over-represented at the relevant occupational level). On that basis, the arbitrator concluded that the decision not to appoint Ms Benjamin complied with the Department’s EEP and as such, the failure to appoint Ms Benjamin did not constitute an unfair labour practice.
On review, the Labour Court found that this conclusion was untenable. The Court held that Ms Benjamin had established a compelling prima facie case. In particular, she met the requirements of the post, had acted in the post and was still performing the functions associated with the post, was assessed by the selection panel as the best candidate and was strongly recommended for appointment. Further, an authorising official at the Department had advised that the employee could be promoted on merit ‘as there were not suitable candidates found by the panel from the groups lagging behind’. Under cross examination, an HR professional employed at the Department agreed that the Department’s EEP provides for regional targets in which coloured females were underrepresented at that occupational level.
The Court concluded that the decision not to promote the employee was irrational, capricious and unfair. In arriving at this decision, the Court noted that the Department had failed to establish that the person ultimately responsible for the decision considered the strong recommendation of the selection panel and the advice from another authorising official that Ms Benjamin could be appointed. Rather, the evidence suggested that the decision was based solely on numerical EE targets and, moreover, on the application of national targets, despite the fact that the Department’s EEP provided for both regional and national EE targets.
Significantly, the Department also failed to show that, when deciding to re-advertise the post, the Department had considered whether there was any realistic prospect of identifying a suitable candidate from an under-represented group. In the circumstances, the Court held that common sense and fairness dictated that numerical targets should have been treated as a neutral factor, with merit becoming the decisive consideration.
The Court set aside the arbitration award and awarded Ms Benjamin 12 months’ compensation.
Key takeaway
This decision is an important lesson for employers when making decisions in line with the objectives of their EEPs.
Under the Employment Equity Regulations, 2025 and the sectoral numerical targets, employers are required to include the numerical goals in their EEP to achieve the equitable representation of suitably qualified people from designated groups within each occupational level of the workforce.
However, the achievement of these goals cannot be implemented mechanically. Our law requires that decision makers act fairly and rationally. This requires that employers, in making decisions in accordance with their EEPs, consider the full context, including merit, operational realities, recommendations of selection panels and whether EE goals can realistically be achieved through the particular appointment process.
