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Equality, race and equity in the workplace: the Constitutional Court speaks

After a 9 year battle, the Constitutional Court handed down the final say in the matter of the South African Police Service (SAPS) and Solidarity (a trade union) on behalf of Renate Barnard on 2 September 2014.

At the heart of the matter is the issue of equality, race and equity in the workplace.

Barnard had applied for the same post within SAPS on three occasions. On all three occasions she was the highest scoring candidate, however her appointment was always refused by the National Police Commissioner, who was the ultimate decision maker. She first approached the Labour Court for relief averring the failure to appoint her on the basis of her race amounted to discrimination. The Labour Court agreed that Barnard had been unfairly discriminated against.

The crux of judgment by the Constitutional Court was that no discrimination had taken place in the failure to appoint Renate Barnard to a post she had applied for. The court further commented that it (the Court) mustn’t treat the implementation of restitutionary measures as subjective to the individual conception of the right to equality, in other words a court must rather be mindful of the general concept of restitution as failing to do this would stifle constitutional  objectives which would result  in inequitable representation.

Barnard conceded at the Constitutional Court that SAPS was obligated to implement an Employment Equity Plan and was alive to the targets it had to meet. Barnard was always aware that there was a surplus of white women in the level of employment she applied for.  The decision to not promote Barnard, did not bar her from future promotions.

The Constitutional Court decided that the National Commissioner had exercised his discretion not to appoint Barnard rationally and reasonably and in accordance with the criteria he was obliged to meet.

The Constitution provides for restorative measures (bringing equality to previously imbalanced racial and gender circumstances) which this judgment affirmed, and commented that a designated employer may not adopt an Employment Equity Policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups. In this regard the Constitutional Court confirmed that the employment equity plan of SAPS was not rigidly applied and therefore his actions did not amount to discrimination.

 Barnard has vowed to take this judgment to the International Labour Organization, whilst various groups have welcomed the judgment by adding that it provided much needed clarity on the constitutional right to equality

The Constitutional Court, in what can preliminarily be seen as well sounded judgment added, “we must remind ourselves that restitution measures, important as they are, cannot do all the work to advance social equality.”

The employment law landscape is constantly evolving and changing and it is important that employers and employees know and understand their respective rights.

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