Eskom guilty of unfair discrimination against white employee

The Labour Court found that Eskom practised unfair discrimination against a white employee who had been with the company for over 30 years.

The case stemmed from a complaint by Eskom employee AP Erasmus, who applied for a new managerial role in the company’s technology division.

According to the judgement, Erasmus had applied for the role of “Manager: Site Outage Execution at Peaking Power Station for the Group Technology Division”.

This is a role overseeing maintenance at Eskom’s peaking power stations, which are emergency facilities like pumped storage schemes and diesel-powered open-cycle gas turbines.

The state-owned power utility’s peaking plants are critical to ensuring the stability of the power grid and have played a huge role in reducing load-shedding.

Eskom’s employment equity officials mandated a preference for “African males and females of all races”.

Erasmus self-identified as “African” in his application. He surpassed the minimum qualifications for the position and was shortlisted.

An Eskom senior manager favoured Erasmus for the role. However, he was not appointed due to employment equity requirements.

Eskom’s HR department informed him that white males were overrepresented by 16% at the level for which he was applying.

They expressed concern over the potential missed opportunity to advance a candidate from a designated group.

During the trial, it emerged that Eskom does not shortlist people from non-designated groups where that group is over-represented at a particular level.

According to the judgement, Eskom accused Erasmus of misleading the panel adjudicating applicants for the post by identifying as African.

However, Erasmus said the issue of him being white and describing himself as African was not raised in the interviews where HR was present. It only became an issue at trial.

Erasmus said he didn’t intend to mislead anyone by identifying as African. He believed the HR questionnaire had given him an opportunity to express the bridge-building values he was promoting in the business.

“I actually saw that HR — this was my perception — where HR gave me the opportunity to indicate whether I am white, whether I am coloured, or whether I am black, whether I am Indian, or whether I am African,” Erasmus told the judge.

“I have never seen in the past any opportunity where I could state that I am a white African because you could only select one of the two. So it was my intention, intentionally I selected African. It was not to mislead at all.”

Eskom‘s Palmiet pumped storage scheme, where Erasmus had overseen a multi-million rand outage project before applying for the post

What was striking is that the position was not filled as no suitable candidates from designated groups could be identified for the job.

Erasmus said the role was critical but was not filled despite him meeting the requirements and his bosses’ recommendation.

He argued that he was not appointed because he was a white male. Erasmus subsequently lodged a formal grievance.

Erasmus took Eskom to the Labour Court, arguing that Eskom discriminated against him because of his race. Trade union Solidarity represented him.

The Labour Court ruled that Eskom discriminated unfairly against Erasmus because he was a white male.

The court ruled that Eskom’s practice of excluding non-designated groups, including white males, from job shortlists constitutes an absolute barrier.

Excluding non-designated groups, including white males, breaches South Africa’s affirmative action laws.

“Eskom must take remedial steps to ensure that the said practice ceases,” Judge Hilary Rabkin-Naicker said in the ruling.

She said Eskom’s policy was an “inflexible and blunt instrument practised at the shortlisting stage”.

It created an absolute barrier for members of non-designated groups to compete with employment equity candidates from the inception of the recruitment process.

Although the court did not oppose affirmative action policies in general, it said Eskom’s action cannot be regarded as affirmative action.

“There are 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,” it said.

She added that Eskom’s recruitment practice infringed on the rights to dignity and equality of non-designated groups.

The court ordered Eskom to take remedial steps to ensure its discrimination against certain groups ceases.

Eskom must also pay compensation to Erasmus equal to 18 months of his salary at the time that he applied for the post in question.