A white Eskom worker was “unfairly discriminated against” based on his race when Eskom decided not to appoint him to a new position after more than 30 years at the power utility.
This was the finding of the labour court in Cape Town after a challenge brought by trade union Solidarity on behalf of the worker, Althus Erasmus.
The labour court found “the existence of an absolute barrier to shortlisting white male candidates” for the new position. What Eskom did, the court found, “cannot be regarded as an affirmative action”. The court thus found no issue with affirmative action policy in general but took issue with Eskom’s implementation of the policy.
A new position was created within its group technology division in 2017 for a manager overseeing site outages. Employment equity officials insisted it indicate “African males and females of all races should be preferred”.
Erasmus applied for the post, far exceeding the minimum requirements. A senior manager, Hennie van Staden, who had helped create the position, wanted to appoint Erasmus. Yet Erasmus did not receive the position. He lodged a formal grievance, noting Eskom found “no suitable candidates from the designated groups” to take up the position.
Erasmus then tried to obtain more information, but Eskom did not comply with his requests. Solidarity, Erasmus’ trade union, took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), but the matter remained unresolved.
Solidarity then approached the labour court on Erasmus’ behalf.
Labour court judge Hilary Rabkin-Naicker found Erasmus was “unfairly discriminated against” by Eskom.
During the trial, Eskom said no white males should have been shortlisted for the position. However, HR person Eileen Dibella said Erasmus had described himself as “African” in the application forms.
“Where we are overrepresented, we don’t shortlist,” she told the court. She denied any “absolute” barriers for white men. If no-one was found suitable from “African males and females of all races”, a second round relaxing the rule could be implemented.
Managerial position
Erasmus told the court he had helped run a multimillion-rand project in a managerial position since 2004. He was kept on longer during the project, as Eskom struggled to find a replacement. Erasmus read a letter from his boss who noted “I cannot afford to lose [Erasmus]”, recommending him to the new post created in 2017.
Erasmus said the post was “critical” and yet was not being filled, despite his bosses recommending him and him meeting the requirements. Despite assurances, he said he didn’t get the position because he was white. “My grievance was against the fact that I was not appointed because of the colour of my skin,” he told the court.
HR informed him white males at the level he was applying for were overrepresented by 16%. HR officials told him they were worried “there would be a missed opportunity to promote a candidate from the designated group”.
Erasmus told the court he picked “African” as a race, since it was alongside white, black and Indian. He said it was a way of working “away from racism” as he considered himself an “African white”. He also noted HR and management had not raised it as an issue during the recruitment process; it only became an issue in court.
Rabkin-Naicker found Eskom’s policy to be an “inflexible and blunt instrument” amounting to an “absolute barrier” to people such as Erasmus. He was not even able to be shortlisted, based solely on his race, the court said.
Rabkin-Naicker also found he was not trying to deceive Eskom by listing himself as an African, as this was not what disqualified him.
“There are myriad ways to take equity targets into account during interviews of suitable candidates for a position,” Rabkin-Naicker wrote, “without blocking categories of persons from proving their worth to an employer in a recruitment practice and in the process infringing on their rights to dignity and equality.”
Though she did not order Eskom to give the position to Erasmus, Eskom was ordered to pay 18 months of his salary. The payout is estimated to amount to millions of rand. Eskom also has to reassess its internal recruitment policies to prevent a recurrence.
There was no cost order.
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