This highly anticipated judgment handed down by the Labour Appeal Court on 2 November 2012, South African Police Services v Solidarity obo Barnard  ZALAC 31, found that restitutionary measures, such as an employment equity plan, may trump an individual’s right to equality, in certain circumstances.
The facts of the matter are briefly that Barnard was not appointed to the position of Superintendent at salary level 9, despite receiving the highest scores by the interview panel on two occasions. Barnard was not appointed as her appointment would have been counter-productive to the SAPS’s employment equity plan and would have resulted in an over representation of white females and white employees at salary level 9.
Being dissatisfied, Barnard pursued an internal grievance and thereafter referred the matter to the CCMA. The matter was later referred to the Labour Court which found that the Employment Equity Act of 1998 (EEA) and employment equity plans should be applied in accordance with the principles of fairness and with due regard to the affected individual’s constitutional right to equality and dignity. The Labour Court found that the SAPS had failed to discharge the onus that not appointing Barnard was fair and found that she was unfairly discriminated against.
On appeal, the SAPS submitted that the Labour Court was misdirected in finding that Barnard’s non-appointment was unfair and inconsistent with the objectives of the EEA.
In essence, the Labour Appeal Court had to determine whether the implementation of equity orientated measures should be limited in the event that such implementation would adversely affect people from non-designated groups.
The Labour Appeal Court found that the role of an employment equity plan is to ensure that decisions about appointments in the context of affirmative action are not arbitrary. The Labour Appeal Court referred to the National Instruction which provides that the National Commissioner is under no obligation to fill an advertised post and that he may direct that a post be re-advertised or promote a candidate from the preference list, other than the recommended candidate.
The Labour Appeal Court found that the Labour Court misconstrued the purpose of employment equity orientated measures by finding that the implementation thereof was subject to an individual’s right to equality and dignity.
The appeal was upheld with no order as to costs, given the important constitutional questions raised regarding employment equity oriented measures.
This judgment ultimately means that employers who act in accordance with their employment equity plans will not be unfairly discriminating against employees from non-designated groups, as long as the decision is not arbitrary.