Solidarity hits another six in the fight against affirmative action

The Labour Court ruled in Solidarity's favour yesterday by ordering Denel Dynamics to permanently appoint a member of the union retroactively as of 10 February 2011 following 24 months of service as a contract worker. Solidarity cautioned companies to stop denying white employees permanent appointments while they are waiting to appoint affirmative action candidates.

Ansie van Niekerk was appointed seven times in continuous fixed-term contracts over the period 9 February 2009 to 28 February 2011. After 24 months' employment as a contract worker in the position of senior secretary, she applied for permanent positions on three occasions. She was overlooked each time owing to affirmative action. She was not even invited to an interview after her third application, even though she met all of the job requirements. Denel breached its own employment policy in the process, according to Solidarity.

"Denel Dynamics's conditions of service clearly state that employees appointed on a contractual basis for more than 24 months should, after this period, be appointed permanently," said Dirk Groenewald, Head of Solidarity's Labour Court Division. An external candidate, a black woman, has been appointed in the position in the meantime, although the company's policy states that preference must be given to internal candidates. "Van Niekerk, who met all the requirements for the position, was not appointed purely on the basis of her skin colour."

Groenewald said that appointing white employees on a contractual basis in order to wait for affirmative action candidates amounts to unfair discrimination and, moreover, the white employees ultimately have to be appointed permanently, as in this case. "Judge André van Niekerk ordered Denel Dynamics to adhere to its conditions of service concerning temporary hourly employees and to appoint Van Niekerk retroactively as a senior secretary, or in a similar position. Denel Dynamics was also ordered to pay the costs of the proceedings."

This case is one of more than 20 cases that Solidarity has instituted against government departments and parastatals regarding the unfair implementation of affirmative action.

Facts on the Van Niekerk case

Ansie van Niekerk was effectively employed as a senior secretary at Denel Dynamics from 9 February 2009 to 28 February 2011. The position entails rendering support to three electronic engineering departments comprising some 40 engineers and technicians as well as three line managers. 

During the period in question, she was appointed in continuous fixed-term contracts seven times: 9 February 2009 to 9 May 2009; 10 May 2009 to 30 August 2009; 1 September 2009 to 31 December 2009; 1 January 2010 to 30 April 2010; 1 May 2010 to 31 August 2010; 1 September 2010 to 31 January 2011; and 1 February 2011 to 28 February 2011.

She received a consistent evaluation score of 4,2 which, according to the performance standard, is equal to "production of better than expected performance, quality and standard". Although she met the requirements and filled the position for more than two years, she was overlooked for a permanent appointment.  

Statement issued by Dirk Groenewald, Head: Labour Court Division, Solidarity, July 5 2012

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