Trade Union Solidarity has said it is going to take Dis-Chem to court after the pharmaceutical giant missed the October 21 deadline to indicate whether it had withdrawn its controversial ban on employing and promoting white people.
Solidarity would serve the first legal papers on Dis-Chem this week, the union said.
This comes after Dis-Chem stood by its transformation plan despite withdrawing the “poorly worded” original memorandum sent to staff.
A moratorium on external and internal appointments and promotion of white people remained in place.
Solidarity said it had written to Dis-Chem on October 18 putting Dis-Chem on terms to indicate whether the controversial racial policy had been withdrawn. If not the case, Solidarity reserved the right to litigate.
“Dis-Chem has ignored this deadline. The entire South Africa wants to know whether Dis-Chem has only withdrawn the controversial memorandum or the policy as well. Instead of providing certainty, Dis-Chem refuses to disclose information. Dis-Chem’s statements are vague and do nothing to create certainty. The question is simply this: Is there a ban on employing and promoting white employees? The fact that Dis-Chem refuses to confirm the information leaves us with no choice but to accept that the policy stands,” said Dirk Hermann, Solidarity’s chief executive.
According to Solidarity, Dis-Chem has gone beyond what the Employment Equity Act allows. Solidarity’s litigation strategy will be a mix of an application for disclosure of information and an application to the Labour Court to declare Dis-Chem’s racial policy unlawful.
Solidarity says the Employment Equity Act prohibited absolute ceilings and quotas and required flexibility.
The act itself and case law in this regard are clear about this, the union said.
“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 punishment but must focus on redress. Dis-Chem wants to establish a hardline racial policy. The goal is simply racial representivity and it has nothing to do with redress,” Hermann said.
Meanwhile, the Commission for Employment Equity, a statutory body under the Department of Labour, slammed the CEO of Dis-Chem Pharmacies’ recent moratorium on the appointment and promotion of white employees as “malicious compliance” with employment equity provisions.
The Dis-Chem memorandum has polarised and further racially divided society, causing much debate on whether Saltzman’s actions were just, in terms of transformation in the workplace.
Chairperson of the Commission for Employment Equity Tabea Kabinde said on Thursday that Saltzman had applied the law according to Section 15 (1) of the Employment Equity Act (EEA) which designated employers to adopt affirmative action measures.
Kabinde also said that Section 21 of the EEA placed accountability and the responsibility to implement employment equity and transform the workplace in the hands of the CEO.
As a result, Kabinde said Saltzman’s actions up to this point were compliant.
However, Kabinde said while Saltzman was dealing with compliance in terms of demographic representation and correctly applied the law, the memorandum did not position employment equity and transformation as a business imperative embedded in the business strategy.
“It, therefore, may be perceived to be malicious compliance,” Kabinde said.
Kabinde commended the Dis-Chem Board after it responded to the backlash the company faced earlier this week, including threats of legal action.
“The response by the board on the other hand seems to align EE to the values and ethos of the organisation, which is critical,” Kabinde said.
Dis-Chem board expressed regret for the wording and tone of the internal memo, saying that it did not reflect the company’s values.
“Equality, diversity and inclusivity are important throughout Dis-Chem, and we continue to make great strides in ensuring that we maintain progress in this area,” it said.
“We have always been cognisant of the imperative to comply with all legislation, including employment equity, on our journey to meet transformation targets, and with a priority of employment on merit, based on our view of giving employment preference to previously disadvantaged communities.”
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