Risks with Unfair Discrimination in the Recruitment Process

In Landman v Minister of Agriculture, Forestry and Fisheries and Another [2024] 7 BLLR 746 (LC), Mr. Landman, a white male, claimed that he was unfairly discriminated against on the grounds of race and gender. Landman had been serving in an acting capacity as the Director for Employee Relations for 14 years but was excluded from the shortlist for the permanent role. The Department of Agriculture, Forestry, and Fisheries (the Department) shortlisted five female candidates, all of whom were later deemed unsuitable during the interview process. The Department opted not to fill the position immediately but instead reserved it for an African female candidate, initiating a headhunting process to identify one. Eventually, an African female was appointed to the post.

Unhappy with the outcome, Mr. Landman lodged a grievance, and when that grievance was dismissed, he referred an unfair labour practice dispute to the bargaining council. When no resolution was reached, he escalated the matter to the Labour Court (LC). Landman argued that the Department's actions constituted unfair discrimination under section 6 of the Employment Equity Act 55 of 1998 and the Constitution. He sought promotion to the director role with backpay or an order setting aside the appointment and re-advertising the post.

The Department’s Defense

The Department defended its decision by asserting that the post was reserved for an African female to advance its employment equity objectives. The Department also emphasized that Landman was not the only male candidate excluded from the shortlist and maintained that appointing the African female candidate was rational and aligned with employment equity goals.

As a designated employer under the Employment Equity Act, the Department was required to have an employment equity plan in place to guide its affirmative action measures. However, at the time, the Department’s plan had expired, and the decision to reserve the role was made based on a draft employment equity plan. This draft plan had not undergone proper consultation and had been rejected by the Director-General, who recommended further amendments to ensure compliance with the Employment Equity Act. These recommendations had yet to be implemented.

Reference to Previous Case Law

The Labour Court considered the precedent set in Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality and Another [2016] 7 BLLR 685 (LC). In that case, the City of Tshwane had relied on an expired employment equity plan to justify excluding candidates based on race and gender. The court in Pretorius held that affirmative action measures must be measurable and supported by a valid employment equity plan. Without an active plan, it is impossible to assess whether the exclusion of candidates serves the employer’s equity objectives, rendering such decisions discriminatory and unjustified.

The Labour Court’s Findings

The Labour Court found that Mr. Landman was unfairly excluded from the shortlist due to discrimination. While it was determined that he would have had a fair opportunity to compete for the position if not for the discriminatory exclusion, there was no certainty that he would have been appointed. As a result, the court ruled that Landman was not entitled to "protected promotion." In reaching this conclusion, the court referred to Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (unreported case no. JR369/15, 10-5-2019) (Whitcher J), where it was held that protected promotion is only appropriate if it can be proven that the applicant was the best candidate for the job. The principle established is that compensation for missed promotion is warranted only if it is clear that the employee would have been promoted but for the unfair discrimination.

Compensation Award

The Labour Court concluded that the Department had committed an unfair labour practice by excluding Mr. Landman from the shortlist without justification. As a result, the court awarded Landman compensation equivalent to five months’ salary, based on the remuneration he earned at the time of his exclusion from consideration for the position.