Recently, an interesting article by Professor Hugo Pienaar of Cliffe Decker Hofmeyr was posted on their website dealing with the recent ruling by the constitutional Court on Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC.
Without going into too much detail about the case, the ruling indicated that the employer should take into consideration both regional and national demographic targets when setting equity targets for its workforce in its employment equity plan. In the circumstances, the employer had not appointed a number of coloured applicants in the Western Cape because they did not meet their national targets despite coloured candidates being the majority applicants (and demographic representatives) in this region.
Further, on appeal, the Constitutional Court addressed the Barnard Principle (South African Police Service v Solidarity obo Barnard [2014] ZACC 23 which states that an employer may refuse to appoint a candidate who falls within a category of persons that is already adequately represented at a certain occupational level. In this case, the court was required to consider whether the Barnard principle’s application is limited to white people only and whether this principle may also be applied in respect of gender. The court ruled that the Barnard principle is not only limited to white people but rather to candidates from all racial groups as well as both men and women.
So what’s the point you ask?
It appears critical for employers to be very careful before turning down a candidate’s appointment because it doesn’t fit in with their targets in their Employment Equity Plan.
While the legislation and court rulings clearly allow for this, it is not cut and dried and the individual and regional circumstances need to be considered.