Labour Court pans Eskom on its skin colour employment policies

The entrance to Eskom Megawatt Park on Maxwell Drive, Woodmead. Picture: Karen Sandison/Independent Newspapers

The entrance to Eskom Megawatt Park on Maxwell Drive, Woodmead. Picture: Karen Sandison/Independent Newspapers

Published May 30, 2024


TRADE union Solidarity has hailed the victory of one of its members after the Labour Court found that power utility Eskom had unfairly discriminated against him moving up the echelons of management because of his skin colour, and awarded him 18 months’ salary as compensation.

The Labour Court in Cape Town ruled earlier this week that Alwyn Erasmus was discriminated against when, after 30 years of employment at Eskom, he was not appointed to an essential position for which he had applied.

Judge Hilary Rabkin-Naicker found that the directive by employment equity officials at Eskom that only “black men as well as women of any race group should be given preference” had prejudiced Erasmus’s application, even though he was precisely the suitable candidate that a senior manager at Eskom wanted to appoint.

This is when Solidarity took the matter to court, praying that Erasmus be promoted to the position, a vacant position, or a similar position to that which he had applied for, and to be compensated the amount of the difference in salary and benefits from November 1, 2017 until now, as if he was appointed.

Solidarity deputy chief executive Anton van der Bijl said they had also asked the court that Eskom take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees.

“Solidarity hopes a Labour Court victory on behalf of one of its members, whose application for a management position at Eskom was refused because of his skin colour, will send a strong message to the outside world,” he said.

“This judgment is also clearly in line with Solidarity’s 2023 settlement with the government, in terms of which race may not be the sole criterion in affirmative action.”

Erasmus was employed by Eskom since August 1, 1988 as a project manager on “managerial level M15” by Eskom Enterprises.

In September 2004, he was transferred to the transmission telecommunication division and in 2017 moved to his current position of senior adviser outage co-ordinator.

In the same year, Eskom implemented employment equity plans for each of its divisions, including its group technology division for a three-year period and required the appointment of a manager for the outage execution section.

Erasmus applied for the post and was favoured by his senior manager for appointment as the manager testified that Eskom could not afford to lose Erasmus’s skills.

However, Eskom decided not to consider any white men for the role, and Erasmus questioned this decision.

After an unsuccessful application at the Commission for Conciliation, Mediation and Arbitration (CCMA), Solidarity approached the Labour Court on behalf of Erasmus.

In February 2018, Erasmus lodged a formal grievance and Eskom indicated that no suitable candidates from designated groups could be identified for the post.

Solidarity took the matter up with the CCMA, culminating in the Labour Court judgment.

Judge Rabkin-Naicker observe that evidence before the court had established that an employment practice of the entity amounted to an “absolute barrier to non-designated groups” and cannot be regarded as an affirmative action measure in terms of the act.

Rabkin-Naicker said there were myriad ways to take equity targets into account during interviews of suitable candidates for a position 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.

“Revisiting the relief sought by the applicant, this court will not usurp the role of the employer and promote Erasmus,” ruled Judge Naicker.

“Given that I have found that Erasmus was unfairly discriminated against, I will however grant him compensation in an amount that I find to be just and equitable on the evidence before me.”

Rabkin-Naicker ordered that Erasmus had been unfairly discriminated against, taking into account the legal principles on costs and the ongoing relationship between the parties.

She also ordered that Eskom’s practice of not shortlisting members of non-designated groups for advertised posts amounted to an absolute barrier and was not an affirmative action measure as contemplated by the Employment Equity Act.

The court said Eskom must take remedial steps to ensure that the said practice ceases and that it pays compensation to Erasmus in an amount equal to 18 months of his salary at the time that he applied for the post in question.

Eskom has not commented on whether it will challenge or abide by this court ruling.