Prisons' dept decision not to promote coloured staff unfair discrimination - Concourt

Johannesburg - In a ruling that will impact how employment equity is applied across the country, the Constitutional Court found on Friday that the decision by the Department of Correctional Services to not promote seven coloured Western Cape employees, was unfair discrimination. 

At the heart of this case were judgments by the Labour Court and Labour Appeal Court on 10 employees of the department in the province - nine coloured and one white - who were not promoted despite being recommended for the posts. The department made their decision not to promote them based on its employment equity plan. 

The Labour Court previously ruled that the department had to ensure both national and regional demographics were taken into account when setting equity targets.

The department's plan, however, was not set aside by the court and no relief was provided for the 10 employees.

The matter was brought to the Labour Appeals Court, which dismissed appeals from both Solidarity and the department.

Solidarity and the employees then approached the Constitutional Court. 

Previous orders set aside

Only seven of the coloured employees were granted leave to appeal by the Constitutional Court on Friday. 

Justice Bess Nkabinde read the order out, setting aside the previous orders of the Labour Court and Labour Appeals Court.  

"The decisions of the department of correctional services not to appoint the individual applicants to the posts... constituted unfair discrimination and unfair labour practices and are set aside," she said. 

She said those of the seven who applied for posts that were still vacant, must be appointed to them and paid remuneration and benefits. Those who had applied for posts that have already been filled must also be paid remuneration and benefits attached to those posts.

In November last year, Solidarity argued before the Constitutional Court that the department’s equity plan as it stood was wrong and allowed for unfair discrimination because it did not comply with the Employment Equity Act.

A key reason for this was that the plan did not look at regional demographics when promoting an employee and stuck rigidly to national demographics.

Regional demographics are the numbers of people according to race, or other factors such as disability, in a particular regional area. The department's plan apparently looked only at the national demographics; appointing people based on race demographics across the country.

One of the arguments that Solidarity put against national demographics was that some race groups might be higher in numbers in specific regions, like coloured people in the Western Cape, or Indian people in Durban, and if the national demographics were taken into account, people from those groups would be unfairly discriminated against in their own areas.

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