The last few newsletters focused on the worldwide recession and bloody economic aftermath of one of the world’s worst economic catastrophes. According to most financial gurus, 2010 should by all accounts be less devastating than 2009. In fact it appears that South Africa is showing goods signs of recovery and growth.

Clients often ask what the effect of the recession has been on employment law. Well, we were kept busy. Other than the fact that we conducted more retrenchments in 2009 than possibly any other year, not much else changed. Employees vigorously continued to commit the same offences as before. Unions, despite being aware of companies’ obvious financial predicament, still demanded high wage increases and better benefits. Incidents of theft have not decreased.

On an interesting note, the Labour Court ruled on the much anticipated Solidarity obo Barnard v SAPS.

The facts of this case are briefly:

Renata Barnard was employed as a Captain in the SAPS with the task of investigating complaints against the SAPS. She applied for the position of Superintendent in 2005. The position had been created by the police to improve its complaints handling service to the public. In 2005, Renata Barnard together with six other applicants, applied for the Superintendant position. As is the norm,

the interview panel met with the applicants, interviewed them and applied a point scoring system. Barnard was awarded 86.7 percent by the interview panel and unanimously recommended for the position.

She was rated at least 7.5 percent higher than the next applicant from the designated group. The panel decided that given the fact that it was clear that she was the best candidate, she must be recommended for the position. The panel was of the opinion that the position required someone of her caliber and that not appointing her would negatively affect service delivery.

This was however not to be…

The divisional commissioner of the SAPS recommended that she not be appointed given that appointing a white person to the position would not promote representation within the SAPS. This was decided despite the fact that Barnard is a woman and as such a member of the designated group as determined by the Employment Equity Act.

After unsuccessfully trying to resolve the matter internally, she referred a dispute to the Labour Court.

Briefly, the court found that although affirmative action is necessary, it should not be used to prevent the advancement of a person particularly in cases where the person affected is also a member of the designated group.

The SAPS were ordered to promote Barnard and bear the litigation costs.

Expect more of these cases this year…