This debate is not going to go away in a hurry. Poor Captain Barnard, or should we say, Superintendent Barnard, has become the darling of those who question the odd application of the EE Act within the public sector. I am one of those people.
To my mind the intention of the act is completely forgotten whilst people like jungle jim chase their own questionnable agenda (racist even perhaps). Not that I think we need worry about jungle - he'll come bouncing back with some rabble rousing comment which will set us back another ten years. It's not a bad act but it has been wholly let down by the SETAs and the schooling system.
Anyway - the judgment is now available on the internet. The salient points were summarised on Leadership on-line.
Judge Pretorius among others found that:
- The Employment Equity Act and Employment Equity Plan must be applied with due regard to fairness and the individual's constitutional rights to equality. It is no longer sufficient to simply set up numbers and leave it at that and due regard is to be given in each individual case to the circumstances surrounding that particular case. If the Employment Equity Act and Employment Equity Plan is applicable it should be open to flexibility;
- Because non-designated groups are adversely affected by equity plans this must be factored in against their rights to equality. In a case like Barnard it should be accepted that she has been adversely affected and that weighed up against the right to equality in reaching a decision;
- "The extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law." This is where there is going to be a clash between the two schools of thought - those who believe it's a numbers game as opposed to those who claim that fairness must be factored in as has been the case with Barnard;
- Where a post cannot be filled by a designated group it must fall to other groups;
- There must be a rational connection between the Employment Equity Plan and the measures to implement it; and
- Service delivery must be factored in where appropriate.
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