No legal right not to be retrenched by virtue of being black and a woman

Source: Bowman Gillfillan Attorneys

In a judgment handed down by the Johannesburg Labour Court on Tuesday, 24 October 2006, the court confirmed that the Employment Equity Act does not impose an obligation on an employer embarking on a retrenchment exercise to retrench its white, rather than its black, employees.

The applicant in Thekiso v IBM South Africa (Pty) Limited alleged that her retrenchment from IBM in 2005 was unfair because, as a black woman, her employer should have retained her. The failure by her employer to consider its affirmative action obligations under the Employment Equity Act, so she claimed, rendered her retrenchment unfair.

Acting Judge Freund dismissed her claim. He followed the earlier judgement of the Labour Court inDudley v City of Cape Town and held that there is no legal obligation on an employer when taking any particular appointment or dismissal decision to give preference to suitably qualified employees from a designated group. The affirmative action provisions of the Employment Equity Act are programmatic and systematic. They require consultation on and the implementation of an employment equity plan, but they do not confer legal rights to preferential treatment in respect of individual appointment or dismissal decisions.

It should be noted that in this case neither the employer nor the employee suggested during the consultation process that affirmative action considerations should play a role in the retrenchment selection process. The court accordingly did not consider whether IBM would have been entitled (rather than obliged) to take race and gender into account in selecting the employees to be retrenched. This question therefore remains unanswered. It also remains to be seen how the court would view the validity of an affirmative action measure contained in an employment equity plan permitting the employer to consider race and gender as factors during a retrenchment selection exercise, and whether the failure to act in accordance with such a plan, would give individuals affected by such a decision any right of recourse to the Labour Court.