SAP's refusal to promote Barnard was not unlawful

© Elena Schweitzer – za.fotolia.com

According to Lauren Salt, an associate in the Employment Practice at Cliffe Dekker Hofmeyr, the appeal involved the question as to whether the decision of the National Commissioner of the South African Police Service (SAPS) to not promote Barnard to the position of superintendent in the SAPS National Evaluation Service (NES), constitutes unfair discrimination on grounds of race in contravention of (i) section 9 of the Constitution and (ii) section 6 of the Employment Equity Act (EEA).

Salt notes that Barnard joined the SAPS in 1989. During 2005, the National Commissioner advertised a position within the NES. Barnard applied for this promoted position on two occasions. Despite being short-listed, interviewed and recommended as the best suited candidate, she was unsuccessful on both occasions.

Commissioner's reasons

The Commissioner's reasons for not appointing Barnard were that it would "...not enhance racial representivity at that particular salary level and that since the post was not critical to service delivery, it was not necessary to fill the vacancy immediately".

"The Labour Court, which found in favour of Barnard, held that the Commissioner's decision was not a fair and appropriate method of implementing SAPS's Employment Equity Plan. Further, it held that SAPS had not given Barnard sufficient reasons for the Commissioner's decision. As such, SAPS had not discharged its onus to establish that the decision was rational and fair," Salt explains.

SAPS took the decision on appeal to the Labour Appeal Court (LAC), which then found in its favour.

"The LAC held that the implementation of restitutionary measures is not subject to an individual's right to equality in terms of section 9(3) of the Constitution. Accordingly, the decision not to promote Barnard was not unlawful because the Commissioner was not obliged to fill the advertised post," Salt says.

On a further appeal to the SCA, the reversed the LAC's decision and found that:

• Barnard was discriminated against on the listed ground of race; and
  
• SAPS failed to rebut the presumption of unfairness.

"Against this," notes Salt, "the SCA held that Barnard suffered unfair discrimination in terms of section 9(3) of the Constitution and section 6(1) of the Act."

Appeal upheld

SAPS applied to the Constitutional Court for leave to appeal the SCA decision. The court was unanimous that the appeal should be upheld.

Salt says that the majority judgment, by Moseneke ACJ, held that the SAPS Employment Equity Plan is a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the EEA. Therefore, the SCA misunderstood the issues before it, and the law. The SCA was under an obligation to examine the equality claim in light of section 9(2) of the Constitution and section 6(2) of the EEA. Sections 9(2) of the Constitution and 6(2) of the EEA confirm that it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA. Barnard did not challenge the validity of the SAPS Employment Equity Plan.

Salt notes that the CC found that the appeal in that SCA was decided on the wrong principle. Accordingly, the appeal was upheld. The order of the SCA was set aside and that of the LAC revived.

"Employers should ensure that affirmative action in the workplace is implemented in accordance with a valid and carefully considered Employment Equity Plan. According to the principles confirmed by the CC, an employer is not obliged to fill vacancies where it would negatively impact on its Employment Equity Plan," she adds.