In Solidarity Obo Benjamin v. Department of Correctional Services and Others, the Labor Court reviewed and set aside an arbitration award dismissing an employee's unfair labor practice claim. The dispute relates to circumstances where the department's selection panel strongly recommended Ms Benjamin, a person classified as a 'woman of colour', for promotion, but the department refused to appoint her on the grounds that the appointment would not align with its employment equity (EE) goals.
The arbitrator accepted the Department's explanation that its Employment Equity Plan (EEP) was focused on national goals (where women of color were over-represented at the relevant occupational level). On that basis, the arbitrator concluded that the decision not to hire Ms. Benjamin complied with the Department's EEP and, thus, the failure to hire Ms. Benjamin did not constitute an unfair labor practice.
On review, the Labor Court found that this conclusion was untenable. The Court considered that Ms Benjamin had established a solid prima facie case. In particular, she met the requirements of the post, had worked in the post and was still performing the duties associated with the post, was assessed as the best candidate by the selection panel and was strongly recommended for appointment. Furthermore, an authorized official of the department had advised that the employee could be promoted on the basis of merit 'as the panel had not found suitable candidates from the left-behind groups'. Under cross-examination, a human resources professional working in the department agreed that the department's EEP provided regional targets in which women of color were underrepresented at that occupational level.
The Court concluded that the decision not to promote the employee was irrational, capricious and unfair. In reaching this decision, the Court said that the Department had failed to establish that the person ultimately responsible for the decision had considered the strong recommendation of the selection panel and the advice of another authorized official that Ms Benjamin could be appointed. Rather, the evidence shows that the decision was based solely on the application of numerical EE targets and, moreover, national targets, despite the fact that the Department's EEP provided for both regional and national EE targets.
Importantly, the Department also failed to show that, when taking the decision to re-advertise the post, the Department had considered whether there was any realistic possibility of identifying a suitable candidate from an under-represented group. In these circumstances, the Court held that common sense and fairness dictate that numerical targets should be treated as a neutral factor, with merit becoming the deciding consideration.
The Court set aside the arbitration award and awarded 12 months compensation to Ms Benjamin.
key takeaway
This decision is an important lesson for employers when making decisions about whether their EEP is consistent with their objectives.
Under the Employment Equality Regulations 2025 and sectoral numerical targets, employers are required to include numerical targets in their EEPs to achieve equitable representation of suitably qualified people from specified 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 impartially and rationally. This requires that employers, when making decisions in accordance with their EEP, consider the whole context, including qualifications, operational realities, selection panel recommendations and whether EE goals can realistically be achieved through the particular appointment process.
Written by Talita Laubscher, Partner and Nikita Solanki, Associate, Bowmans