Unisa v. Reynhardt [2010] 12 BLLR 1272 (LAC): Does Affirmative Action Have a Lifecycle?

The Employment Equity Act (EEA) was enacted to achieve equity in the workplace by prohibiting unfair discrimination and by requiring the implementation of affirmative action measures to ensure the adequate representation of designated groups. To ensure compliance with the EEA a designated employer must ensure that it formulates an affirmative action policy within which employment equity targets are stipulated and met. One of the on-going debates around affirmative action is whether it has a life-span. One school of thought argues that affirmative action requires a legislated sunset clause, in which considerations of race, gender and disability will no longer be implemented by employers, instead of which each employer will look to employ a candidate who is suitably qualified for the vacant post. The other school of thought argues that the need for affirmative action is two-fold: to redress past inequalities, but also to deal with existing inequalities within society. Having a sunset clause this would negate the aim of affirmative action to deal effectively with both kinds of inequalities and also the creation of a representative workforce. In the case of UNISA v. Reynhardt it was held that once an employer has reached his employment equity targets it is no longer justifiable for it to apply affirmative action, but that the principle to be applied is that the most suitably qualified candidate is to be appointed. The non-application of affirmative action is subject to an employer’s commitment to meeting employment equity targets and a recognition by the employer that once these targets are reached they must be maintained within the organization. Consequently, once a disparity exists, affirmative action must again be applied, resulting in the imputation of a distinct lifecycle to affirmative action. Failure on the part of the employer to do this would have the potential of creating reverse discrimination against employees who are not the beneficiaries of affirmative action.

know these barriers have been recognised and addressed appropriately? The effectiveness and fairness of employment equity is seen in its application and in most cases its "reality" is seen in whether or not designated employers meet their targets. 8 A designated employer 9 must apply employment equity in a fair and rational manner in order for affirmative action to be seen to bear fruit. 10 Affirmative action is there to redress the inequalities of the past and must be seen to do so rather than to create a form of reverse discrimination. 11 In this paper it will firstly be argued that in order for an affirmative action policy to be of a standard capable of withstanding constitutional scrutiny, it needs to set clear targets of how it will achieve a representative workforce within a particular employer setting. Secondly, it is important that once these employment equity targets are reached affirmative action should no longer be applied within the organisation, in order to ensure that reverse discrimination does not occur. It will be argued that once employment equity targets are reached, only then will it be justifiable to exercise the principle of employing only the most suitably qualified candidate regardless of race, gender or disability. Thirdly, once equity targets are reached they must be maintained. If there is a change in composition this will require a reapplication of affirmative action, thus creating a distinct lifecycle for the application of the principle. Lastly it will be argued that different dynamics are at play within each individual designated employer setting. Most evident are the dynamics of representivity with a particular focus in most cases on race. In the 8 Vermeulen and Coetzee 2006 SAJBM 53. See also Coetzee and Bezuidenhout 2011 Southern African Business Review 75. 9 Section 1 of the Employment Equity Act 55 of 1995 defines a "designated employer" as a) an employer who employs 50 or more employees; b) an employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 to this Act; c) a municipality, as referred to in Chapter 7 of the Constitution; d) an organ of state as defined in section 239 of the Constitution, but excluding local spheres of government, the National Defence Force, the National Intelligence Agency and the South African Secret Service; and e) an employer bound by a collective agreement in terms of section 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement; The Labour Appeal Court found that the employment equity plan of UNISA was seeking to redress the historical imbalances of the past by deciding upon the targets of 70% to 30% in representivity. 19 The court further held that within the UNISA employment equity plan was an express statement of when employment equity would no longer be necessary, which was once the targets had been reached. 20 The policy was that once the equity target had been reached then the selection of a candidate needed to be on the basis of merit, and that in this particular case the "most suitable candidate" was Professor Reynhardt. The court held it was on this point that UNISA failed to act rationally and fairly in the correct implementation of their employment equity plan, and thus failed to show that they had acted to promote the achievement of equality. UNISA's appeal to the Labour Appeal Court was therefore dismissed. 21

Analysis of the case
The court in its analysis of the facts of the case was clear on the constitutionally justified discrimination that would occur in the application of affirmative action. This was necessary, the court thought, to achieve the aim of redressing the imbalances within South Africa arising from its apartheid past. 22 It is noteworthy that in the Reynhardt case the emphasis is on race and the racial composition within each level of the posts of Dean and Vice Dean. 23 No mention is made of the gender composition of the occupants of these posts or of the appointment of persons with disabilities within these posts, and of whether or not any targets had been set in that regard. alone. 25 Affirmative action is not just about race. The quest for representivity requires an investigation into the gender and disability composition of incumbents also.
It is also noteworthy that not only had the employment equity plan of the university to be of a standard that would be able to withstand constitutional scrutiny, but it also needed to set targets describing how it was to create this representative workforce.
A clear commitment to transformation may be seen within the University, as the targets had been reached. 26 The issue in question was the continued application of the employment equity plan once those targets had been reached. The employment equity plan clearly stated at what stage employment equity would no longer be applied and when individuals would be appointed on the basis of merit, irrespective of race. In this case the most suitably qualified individual was Professor Reynhardt. 27 It has been held that affirmative action remains a means to an end and it is therefore justified by its consequences. 28 The consequence is the achievement of equality.
The need for affirmative action will end when past imbalances are rectified. 29 The issue then becomes how it will be possible to identify the point in time when it will be clear that past imbalances have been rectified and affirmative action can thus cease.
In The Reynhardt case gives us an indication of the circumstances when affirmative action can cease to the applied, but it is clearly an instance that is specific to a particular employer and the wording within that employer's employment equity plan.
The employer must have a comprehensive employment equity plan that is able to withstand constitutional scrutiny. Clear targets must be set to increase representivity within the workplace. The Reynhardt case also points to the reality that the legacy of apartheid and the disparity it created will take time to eradicate through the application of affirmative action. 34 The representivity that resulted in the Reynhardt case came about as a result of a clear commitment by the employer to meet employment equity targets.
Within the process of applying affirmative action the goal must be not only the advancements of individuals previously disadvantaged. Another goal which employers must always have in mind is the creation of a workplace where substantive equity is a reality and where, over time, appointments will be based on merit. This also places a duty on employers to ensure that that once they have reached their targets in applying affirmative action they maintain the equitable 32 Alexandre representation. 35 Maintenance would require that should there be a shift in representation as against the set targets, then affirmative action would be applied again. By implication this would mean that another "lifecycle" of affirmative action would begin.
In terms of section 9 (2)  The process of achieving equity requires affirmative action, and the outcome of the process is to be a workplace based on equity and fairness. 39  the constitutionally mandated goal it is clear that affirmative action is primarily about numbers but also about taking into account the particular circumstances of the employer. 42 Employers must therefore within their employment equity plans be seen both to intend the achievement of substantive equality and to describe how it is to be achieved. 43 The test is whether or not the measures to be put in place are causally linked to the objective of a equitable and representative workforce. 44 There is recognition that affirmative action is "compensation for past invidious discrimination" and thus a "compelling state purpose"; and therefore that "affirmative action does not violate the rights of even the innocent person (a non-member of the designated group) as their burden is "outweighed by the benefits of affirmative action." 45 It has been held that the substantive approach to equality requires a deliberate acknowledgement and assessment of historical differences and discrimination in order to meaningfully address inequality. 46 In terms of section 20(1)(e) of the Employment Equity Act 47 an indication is given as to the duration of an employment equity plan. It may not be shorter than one year or longer than five years. Employment equity goals set by an employer are therefore by implication given a maximum of five years to be achieved. In the case of Solidarity on behalf of Barnard v SA Police Service 48 it was held that an employment equity plan needed to be applied according to the principle of fairness and the consideration of an employee's right to equality and dignity. It has been argued that affirmative action is justified by its goal of the achievement of equality. Once equality has been achieved the rationale for affirmative action falls away, in which case continued efforts in the interest of affirmative action might well be regarded as unfair discrimination. Amercia has applied affirmative action for a much longer period than South Africa.
Dworkin points out that according to the best evidence yet available affirmative action is not counter-productive but seems to be an impressive success in the United States. 50 It is clear that unless remedied the effects of past discrimination may continue for a substantial period of time and even indefinitely. 51 Therefore there clearly needs to be a rational connection between the affirmative action measures employed by a particular employer and the aims which they are designed to achieve, one of which is a representative workforce. 52 It has been noted that having a representative public service is a goal in itself. The Constitution therefore views affirmative action not as a limitation of the right to equality but rather as a measure necessary to the achievement of equality. 53 It has been noted that affirmative action cannot be implemented in isolation of other societal and economic issues, and that so as long as disparity continues to exist within society along racial lines, be it through a lack of access to education or a lack of basic services, such disparity will continue to manifest itself within the employment arena. 54 Dupper 55 points out that the forward-looking rationale of affirmative action is that it is a way of overcoming prejudice by changing widely held attitudes towards members of disadvantaged groups as well as being a tool for integrating

Conclusion
In the case of UNISA v Reynhardt it was held that once an employer has reached his employment equity targets it is no longer justifiable for the employer to continue to apply affirmative action. The employer must therefore in the lifecycle of affirmative action apply the principle of the most suitably qualified candidate. Appointments must then be based on merit. The non application of affirmative action is subject to an employer's commitment to meeting employment equity targets. It is therefore possible within a specific employment setting to create a workplace that no longer applies affirmative action due to its targets having been reached. It is still important, however, that employers realise that they have reached this stage, as a failure to recognise this will result in employees or potential candidates who are not beneficiaries of affirmative action suffering discrimination that is not justified. Also, once employment equity targets are reached it is vital that they be maintained. Once a subsequent disparity comes into existence affirmative action must again be applied. Ultimately, the goal of affirmative action must be seen as to break down both the visible and invisible barriers to achieving equality within the workforce and, in doing so, to create an environment where the constitutional values of equality, human dignity and freedom are truly recognised and protected.

Bibliography
Bowen and Bok Shape of the River