Solidarity obo Erasmus v Eskom Holdings SOC Ltd (C1001/18) [2024] ZALCCT 18; (2024) 45 ILJ 2073 (LC) (24 May 2024)

Solidarity obo Erasmus v Eskom Holdings SOC Ltd (C1001/18) [2024] ZALCCT 18; (2024) 45 ILJ 2073 (LC) (24 May 2024)

The Court found that Eskom's practice of shortlisting only under-represented designated groups for the advertised post amounted to an absolute barrier for non-designated groups, specifically white males. This practice was not a permissible affirmative action measure under the Employment Equity Act, as it excluded certain candidates from the inception of the recruitment process and prevented them from competing for the position. The respondent failed to establish that its conduct was consistent with section 6(2) of the Act, and the evidence showed that the employment equity plan was applied in an impermissible manner. The applicant was unfairly discriminated against on the basis of race,...

Citation
[2024] ZALCCT 18
Parties
Applicant: Solidarity obo AP Erasmus; Respondent: Eskom Holdings SOC Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
24 May 2024
Case Number
C1001/18
Procedural Posture
Labour Discrimination Application / Judgment After Trial
Outcome
The applicant succeeded; the respondent was found to have unfairly discriminated and ordered to pay compensation.
Judges
Rabkin-Naicker
Legal Topics
Employment Equity Act, Affirmative Action, Unfair Discrimination, Absolute Barrier, Shortlisting Practices, Compensation for Discrimination
Labour Law Employment Equity Act Affirmative Action Unfair Discrimination Absolute Barrier Shortlisting Practices Compensation for Discrimination

Case Brief

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Parties

Solidarity obo AP Erasmus

Applicant

Eskom Holdings SOC Ltd

Respondent

Procedural Posture

Labour Discrimination Application / Judgment After Trial

Legal Issues

  1. 1 Whether the respondent's shortlisting practice amounted to unfair discrimination on the basis of race.
  2. 2 Whether the exclusion of non-designated groups from shortlisting constituted an absolute barrier prohibited by the Employment Equity Act.
  3. 3 Whether the applicant is entitled to compensation for unfair discrimination.

Ratio Decidendi

The Court found that Eskom's practice of shortlisting only under-represented designated groups for the advertised post amounted to an absolute barrier for non-designated groups, specifically white males. This practice was not a permissible affirmative action measure under the Employment Equity Act, as it excluded certain candidates from the inception of the recruitment process and prevented them from competing for the position. The respondent failed to establish that its conduct was consistent with section 6(2) of the Act, and the evidence showed that the employment equity plan was applied in an impermissible manner. The applicant was unfairly discriminated against on the basis of race,...

Court Disposition

The applicant succeeded; the respondent was found to have unfairly discriminated and ordered to pay compensation.

Orders

  • The respondent unfairly discriminated against Erasmus.
  • Eskom's practice of not shortlisting members of non-designated groups for advertised posts amounts to an absolute barrier and is not an affirmative action measure as contemplated by the EEA.