Simplified summary of the recent Labour Court Case related to quotas and opposed to targets in employment Equity

By dessquire, 4 February, 2016

Following a recent Labour Court case involving Solidarity and the Minister of safety and security the issue of target as opposed to quotas in Employment Equity was highlighted. Judgement was handed down as recent as January 26th2016.

The case had reference to the SAPS employment equity plans for the period 2010 to 2014 which Solidarity felt amounted to (in relation to the gender and racial targets) nothing more than quotas.

The crux of the matter under consideration was whether or not the SAPS EE Plan promoted equality as set out in terms of the constitution. Any decisions made in this regard (equality) must ensure there are no disproportional burdens, or can be construed as abuse of power or cause undue harm to those excluded from benefiting in relation to the objectives and goals of the constitution.

In the Labour Court case where Solidarity took on the Department of Correctional Services the court defined quotas as “an inflexible set of numbers with which the employer is required to comply ‘come what may’ this would be in breach of section 15(3) of the EE Act. In other words if there is no flexibility in the plan then it is not acceptable.

In the SAPS case there was no provision in the plan for any form of flexibility. In addition there was nothing in the wording that suggested the targets were proposed figures that the SAPS was hoping or aiming to achieve rather than fixed objectives that must be achieved. Failure would have resulting consequences.

It should then be remembered that an EE plan should provide for, and allow decision makers to deviate from the proposed targets (for appointments and promotions) under pre defined circumstances. In other word when will it be considered acceptable when the numeric targets are not met? The important thing is that there must be flexibility in the EE plan.

The end result was that the SAPS EE plan for 2010 to 2014 was declared invalid in terms of sections 15(3) and 42 of the EE and sections 9(2) of the constitution of SA.      


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