Commission for Employment Equity on the implementation of employment equity as a tool to transform the economy

The Commission for Employment Equity (CEE) has over years, lamented that the pace of transformation of the labour market is at a snail pace.

At Top, Senior, Middle and Junior management, the advancement of black people, specifically, African and Coloured has been characterised by an unpredictable and staggered trajectory. At lower levels (i.e. Semi-skilled and Unskilled) of our South African workforce, there is clearly higher percentages of the representation of black people, in particular Africans and Coloured population groups, women, especially African and Coloured; and persons with disabilities. This “dark hole syndrome” has been the pattern over 24 years since the inception of the Employment Equity Act (EEA).

There is therefore, a clear indication that the transformation legislative instruments, in particular the EEA has not induced the serious consideration in the decision-making processes of corporate South Africa, and the labour market as a whole.  The approach on the implementation of the EEA by the captains of industry so far, has not generated the necessary urgency and momentum required in transforming the economy.

One cannot expect different results when the approach by decision-makers/ captains of industry has always been ‘malicious legal compliance’ with the EEA and the Broad-Based Black Economic Empowerment Act (B-BBEEA). Much of the efforts are merely aimed at scoring points to get the B-BBEE certificates in order to access state contracts, and not on substantive compliance. The decisions and practices are not embracing the spirit and ethos of Employment Equity.

Employment Equity must be seen as a tool to drive the transformation agenda of any organisation to ensure that there are intentional opportunities created for designated groups therefore, striving for diversity, equity, fairness and inclusivity in any organisation’s workplace. As such, it should be implemented as a business imperative with consequence management for those who do not implement it seriously in organisations. Where there are Boards that are responsible for governance, particularly Social and Ethics Committees, it should be driven from that level.

It is essential that prohibition of unfair discrimination and the commitment to the implementation of affirmative-action measures are mutually reinforcing processes required to achieve “substantive equality” in order to give effect to the right to equality, as enshrined in section 9 of the Constitution of the Republic of South Africa (Constitution).

Reflections on the Dischem matter:

We should also concede that the elimination of unfair discrimination alone will not remedy this, but policies, programmes and other positive actions such as affirmative action, which are designed to redress the imbalances of the past are therefore needed.

Section 5 of the EEA provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.  Preferential measures taken by a designated employer should exclude quotas.

In order to promote equal opportunities, section 13 prescribes that every designated employer must implement affirmative action measures to achieve equity for people from designated groups by consulting with its employees when conducting an analysis; preparing and implementing an employment equity plan.

Furthermore, according to Section 15(1) designated employers must adopt affirmative action measures that are designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce.

In order to ensure that there is compliance with the spirit and ethos of employment equity, section 21 of the EEA places accountability and the responsibility to implement employment equity and transform the workplace in the hands of the Chief Executive Officer (CEO) and captains of industry.  The CEO of Dischem’s action up to this point are compliant.

In terms of case law, the Constitutional Court judgement in the SAPS vs Solidarity (Barnard case) emphasised that the accounting officer/ CEO has the legal obligation to take a decision to appoint and not to appoint a candidate in a particular position if that appointment is not in line with the EE targets in the EE Plan of the designated employer.

Furthermore, in another Constitutional Court judgement in the case of Department of Correctional Services vs Solidarity, the Court pronounced that the designated employer cannot perpetuate the over-representation of a particular race or gender groups at the expense of the under-represented groups at any occupational level of the workforce.

The Dischem memorandum has caused much debate in society on whether the actions of the CEO were just or not. While he was dealing with compliance in terms of demographic representation, and has correctly applied the Sections mentioned above, we note that the memorandum does not position EE and transformation as a business imperative embedded in the business strategy. It therefore, may be perceived to be malicious compliance. The Memorandum dealt with EE as a subject for chasing numbers instead of fully embracing the spirit and the letter of law. The response by the Board on the other hand, seems to align EE to the values and ethos of the organisation, which is critical.

The malicious compliance is one of the reasons for the tabling of the Amendment Bill of the EEA. The EE Amendment Bill is still to be signed into law by the President and we wait eagerly for this.

The CEE is encouraged by thousands of designated employers that have already submitted their 2022 EE Reports, which indicates that there are “pockets” of employers out there that are committed to the transformation agenda of this country.

Source: Government of South Africa