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Case law proves: Promoting Employment Equity MUST NOT conflict with the principles of the Constitution

by , 20 January 2014
Make sure you consider the law before you implement Employment Equity in your workplace. If you don't, you may just find yourself at the Labour. Continue reading to find out how courts rule in matters relating to Employment Equity and the principles of the Constitution so you don't make the same mistakes.

There are two things you must do to achieve equity in your workplace. You must ensure you:

  1. Don't discriminate (do this by eliminating unfair discrimination in your company)
  2. Implement Affirmative Action (AA).


That said; your duty to promote Employment Equity MUST NOT, in any way, conflict with the principles of the Constitution.

To help you with this, today we'll discuss a case in which the courts ruled that promoting Employment Equity mustn't conflict with the principles of the Constitution

Case law example: Make sure your duty to promote Employment Equity isn't in conflict with the principles of the Constitution:

Case: Coetzer& Others v Minister of Safety & Security & another (2003) 24 ILJ 163 (LC)

The Practical Guide to Human Resources Management explains that in the matter between Coetzer & Others v Minister of Safety & Security & another (2003) 24 ILJ 163 (LC),employees of the South African Police Services felt there was unfair discrimination when they applied for a promotion and didn't get it.

The facts of the case:

  • The employees worked for the South African Police Services (SAPS) in the bomb squad division;
  • The SAPS put an Employment Equity Plan (EEP) together according to the Employment Equity Act 55 of 1998;
  • In the EEP, some posts were only for people from designated groups;
  • Each division of the SAPS had to create its own EEP. But the bomb squad division of the SAPS didn't;
  • The employees were all white males and didn't fall into any 'designated group';
  • The employees applied for promotion to the designated posts. But the national commissioner refused to promote them. There hadn't been applications from members of the designated groups for these positions; and
  • The employees went to the Labour Court. They made a claim that they'd been unfairly discriminated against on a racial basis.

So how did the court rule?

The court's findings were as follows:

  • The court looked at the EEP put together by the SAPS and also looked at the Constitution. The Constitution sets out other goals and values for our society;
  • The Court said that sections 205-208 of the Constitution deal with the police force. These sections state that there must be a balance between affirmative action plans and other plans. One of these is that there must be an effective police force;
  • If an employer relies on Affirmative Action as a defence (Section 6(2) of the EEA), they must show that the defence doesn't conflict with the Constitution;
  • The bomb squad division of the SAPS didn't have its own Affirmative Action plan as required by the general SAPS EEP. And so the SAPS couldn't use this as a defence;
  • The Affirmative Action defence failed because the national commissioner's didn't appoint the applicants because of Affirmative Action requirements. And he overlooked other constitutional imperatives, such as Section 205 of the Constitution, which says that there must be an effective police force; and
  • The employees won. The Court didn't award a monetary award; instead, the employees were promoted.

What can you learn about employment equity from this case?

  • When you rely on the defence of Affirmative Action (AA), show that the defence doesn't conflict with other sections of the Constitution; and
  • When you rely on AA as a defence then you must at least have an AA plan.

Don't make the same mistake that the SAPS did. Make sure your duty to promote Employment Equity isn't in conflict with the principles of the Constitution.

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