The Johannesburg labour court has found that the Employment Equity Act does not impose an obligation on an employer embarking on a retrenchment exercise to retrench its white rather than black employees. The Business Day ran this article in this morning's paper (Firms not obliged to retrench white staff).
The case revolves around a black female who was retrenched. She then asked the labour court to reinstate her because the employer was obliged to consider affirmative action legislation when they employed or retrenched.
The court found that "there was no legal obligation on an employer when making an appointment or dismissal to give preference to suitably qualified employees from a designated group."
This is a very interesting concept. I always regarded employment equity as being about hiring and promoting people from designated groups, and have never thought about terminations. The article does talk about the legal implications of a company's EE plan that distinctly mentions that the employer must consider race and gender as factors during a retrenchment selection. This is still to be tested. Whilst one never wants to go through a round of retrenchments it is probably a good idea to ensure that the EE plan does not have such a clause.
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