Legal action underway for Dis-Chem over ‘no whites’ policy

Trade union Solidarity says it will press ahead with its lawsuit against Dis-Chem over its policy of not hiring or promoting any white South Africans in order to boost its transformation agenda.

The legal actions follows Dis-Chem withdrawal of a contentious memorandum that was leaked to the public this month. Stating unequivocally that white South Africans would be barred from appointments or promotions at the listed group.

The memo, written by Dis-chem CEO Ivan Saltzman, stated that the policy would be incorporated into management’s bonus structure in order to achieve set employment equity targets.

While the Dis-Chem board rescinded the memo, Solidarity demanded confirmation from the group that the policy itself was no longer in effect. Dis-Chem was given until Friday, October 21, to confirm this r face legal action.

“Dis-Chem has ignored this deadline,” said Solidarity.

According to Solidarity, apparently Dis-Chem long-standing policy violates South Africa’s Employment Equity Act, and its litigation strategy will be including both a request for information and a request to the Labour Court to declare Dis-Chem racial policy unlawful.

The Employment Equity Act said, absolute ceilings and quotas are prohibited and require flexibility. “The Act itself and case law in this regard are clear about this.”

“There are legal bounds to race legislation. Dis-Chem is now setting a new norm for the private sector. The law cannot be broken in an attempt to comply with an Act. Judicial decisions, too, have clearly shown that there are rights of white employees that must also be protected.

“Racial legislation and policy must not be a punishment but must focus on redress. Dis-Chem wants to establish a hard-line racial policy. The goal is simply racial representivity and it has nothing to do with redress,” the union said.

The Department of Employment and Labour has expressed mixed feelings about the controversy surrounding the Dis-Chem memo.

According to the department, while the Dis-Chem CEO’s stance does not appear to be in violation of the letter of the law, it is violation of the spirit of employment equity and affirmative action and may amount to  ‘malicious compliance’ with the law.

 It’s stated that the Employment Equity Act(EEA) requires all employers to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice- but preferential measures take n by a designated employer should not include quotas.

“According to Section 15(1) (of the EEA), designated employers must adopt affirmative action measures that are designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce.

“To ensure that there is compliance with the spirit and ethos of employment equity, section 21 of the EEA places accountability and the responsibility to implement employment equity and transform the workplace in the hands of the chief executive officer and captains of industry. The CEO of Dis-Chem’s actions up to this point are compliant,” the department said.

The department stated that in the future, this type of action could be deemed illegal or unlawful.

“While (Saltzman) was dealing with compliance in terms of demographic representation – and has correctly applied the Sections mentioned above – we note that the memorandum does not position employment equity and transformation as a business imperative embedded in the business strategy.

“It, therefore, may be perceived to be malicious compliance. The memorandum dealt with EE as a subject for chasing numbers instead of fully embracing the spirit and the letter of law.

“Malicious compliance is one of the reasons for the tabling of the Amendment Bill of the EEA.”

The Employment Equity Amendment Bill, will allow the labour minister to set sector-specific transformation targets, which critics have called a racial quota system for South African businesses.

Main Image: Killarney Mall/Dis-Chem