SANDILE JULY AND NONKOSAZANA NKOSI: Jobs unlikely to be lost when applying employment equity targets

The publication of the employment equity (EE) regulations last month has caused much controversy. While a vibrant contestation of ideas is the lifeblood of a healthy constitutional democracy, public discourse must always adhere to the factual and legal reality that informs it. 

As the Constitutional Court so eloquently put it in SA Police Service v Solidarity obo Barnard, the objects of EE are to “redress the effects of past discrimination to achieve a diverse workforce, representative” of the SA populace.

These objectives are enveloped in and should promote the equally important ideal that “beneficiaries of affirmative action must be equal to the task at hand” and “efficacy and competence” should not be sacrificed at the altar of “remedial employment”. 

These ideals are the cornerstone of our EE regime and serve as a guiding light as we navigate the seas of economic and social transformation in the workplace.

Alarm has been sounded that employers may be compelled to dismiss employees or reduce their workforce by targeting non-designated people to meet the numerical targets. Considerable unease exists regarding the potential enforcement and implementation of numerical targets in an exclusionary manner that unjustly marginalises individuals outside the designated groups.

This raises the question of whether numerical targets are a threat to our labour and employment regime. The answer is no. Regardless of the perspective from which you approach the interpretation of the EE regulations, it is highly unlikely to reach the conclusion that the regulations permit dismissals.

Dismissal for the purposes of meeting the numerical targets would be in violation of the Labour Relations Act. Lawful dismissals still have to meet the traditional misconduct, incapacity and operational requirement parameters. As the labour court intimated in Robinson & others v PWC, “affirmative action is not and never has been legitimate ground for retrenchment”.

Rigid enforcement

Applying and enforcing the targets as a threshold rather than a benchmark, leading to the systematic exclusion of individuals outside the designated groups, would also be unlawful. Our intentional and strategic approach should aim to work towards these targets as goals, rather than rigid thresholds that result in exclusion.

These concerns may reasonably materialise through the rigid enforcement and implementation of the numerical targets, which disregards the rights of individuals outside the designated groups to dignity, fair labour practices and freedom of trade, occupation and profession. 

However, as things stand the numerical targets are in the form of percentages categorised in terms of population groups and gender, applicable over a five-year period for 18 identified economic sectors. They are divided between national and provincial targets for the economically active populations.

Mainly, the intention is to roll out the targets at top management, senior management, professionally qualified and skilled occupational levels, including reforms for employees with disabilities. Employers are also required to apply their chosen economically active population (either national or provincial) to semi-skilled and unskilled occupational levels.

Again, the devil is in the detail of how these percentages are applied by employers and enforced by the department of employment & labour. As the Constitutional Court noted in Barnard, the distinction between numerical targets and quotas “lies in the flexibility of the standard”. It is presumptuous to label the introduction of percentages as quotas or to assume that they will be rigidly applied and enforced.

Make submissions

There is an intention to promote and uphold flexibility. For instance, designated employers have the option to comply either with national or provincial targets. They therefore have to think strategically given the areas in which they operate and consider which targets will give them the most flexibility.

It may also be crucial to make submissions on whether the proposed percentages offer adequate flexibility, whether at national or provincial level. The department should provide a comprehensive explanation for the methodology used to determine the percentages. This is particularly significant given that certain categories of population and gender groups have been consistently allocated a 0% representation across multiple sectors.

Employers may present reasonable grounds for noncompliance with the targets. We believe the justifications for noncompliance present employers with an opportunity to craft EE plans that progressively implement the targets over the five-year period based on availability of qualifications, skills and expertise or financial feasibility. It may be essential to incorporate a provision that expressly permits progressive implementation. 

Public comments must be submitted within 30 days of the date of publication of the EE regulations. When engaging with the numerical targets one must consider whether the targets strike the critical balance between promoting representativeness and retaining meaningful flexibility.

• July is director and head of employment, and Nkosi senior associate, at Werksmans Attorneys.