- Benjamin ranked highest for promotion and was strongly endorsed by the selection panel.
- Management did not appoint her, citing employment equity targets.
- Labour Court ruled the decision unfair and awarded her a year’s salary as compensation
A Correctional Services employee who was identified as the best candidate for a promotion successfully challenged the department’s decision to deny her the appointment based on employment equity grounds.
The Labour Court in the Western Cape found that the Department of Correctional Services committed an unfair labour practice when it refused to promote A Benjamin to the role of Provisioning Administration Officer in Logistics Administration Level 7 in the Drakenstein Management Area.
The vacancy was advertised in 2020, and several candidates were shortlisted for interviews. After the interviews, the selection panel strongly recommended Benjamin for the role. They found her to be the most experienced and knowledgeable candidate, and noted that she met the regional employment equity targets in place at the time.
Two other candidates were found suitable, but Benjamin was ranked first. The panel’s report stated that the "strongly recommended candidate, Ms Benjamin A (C/F), is in line with the regional equity targets" and was the most experienced candidate for the post.
Management rejects recommendation
The recommendation was sent to senior officials and the delegated authority for approval. Although there were concerns about employment equity representation, the Regional Coordinator for Special Programmes advised that the appointment could go ahead on merit, since no suitable candidates had been found from underrepresented groups.
The official noted that "the delegated official may appoint on merit since there were no suitable candidates from the groups lagging."
Despite this advice, the Deputy Regional Commissioner decided that none of the recommended candidates met the employment equity targets and instructed that the post be re-advertised. However, the position was never re-advertised, and Benjamin did not get the promotion.
Employee was already doing the job
Benjamin testified that she had already taken on the duties of the role when the previous incumbent was absent, and continued to do so while the position remained empty.
She argued that Correctional Services had wrongly ignored the regional employment equity targets, which showed that coloured females were underrepresented in the Western Cape at this level.
Correctional Services maintained that its employment equity plan focused on national targets, which indicated that coloured females were overrepresented in that category.
Labour Court rules the decision unfair
An arbitrator initially dismissed her dispute, accepting the department’s explanation that the decision aimed to comply with its employment equity plan. However, the Labour Court came to a different conclusion when reviewing the case.
The court found that Benjamin had built a strong case. She met all the requirements for the job, had already done the work, received the highest recommendation from the selection panel, and had the support of an employment equity official who said she could be appointed on merit.
Judge Benita Whitcher found that Correctional Services failed to show that the decision-maker properly considered the panel’s recommendation or the advice that Benjamin could be appointed despite the employment equity concerns. Instead, the evidence suggested that the decision was based mostly on numerical targets.
The judge noted that fairness must remain the guiding standard when applying employment equity, and that numerical targets cannot be enforced rigidly without considering each case’s unique circumstances. The court found that the decision not to promote Benjamin was irrational, arbitrary, and unfair.
Compensation awarded
Correctional Services argued that the original post no longer existed because operational needs changed and a new position was created. The court found this irrelevant, since the post only ceased to exist long after the decision about the promotion was made.
The court set aside the arbitration award and replaced it with a finding that Correctional Services had committed an unfair labour practice.
Benjamin was awarded compensation equal to one year’s salary, calculated at the rate she earned when the unfair labour practice occurred on 30 May 2022.
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