ICYMI – Legal action against Dis-Chem underway over ‘no whites’ policy 

Trade union Solidarity said on Monday that it would continue with its litigation against Dis-Chem over its policy to not hire or promote any white South Africans.

THE LEGAL ACTION FOLLOWS DIS-CHEM’S CONTROVERSIAL MEMORANDUM

This comes after Dis-Chem withdrew its controversial memorandum that leaked. The document stated that white South Africans would be blocked from appointments or promotions in the company.

Dis-Chem CEO Ivan Saltzman told the media that the policy was to achieve set employment equity targets and would be incorporated into management’s bonus structure.

Solidarity demanded confirmation from the group that the policy itself was also no longer in effect. 

ALSO READ: Dis-Chem withdraws moratorium on hiring of whites -‘ regrets its wording’

SOLIDARITY DEMANDED CONFIRMATION FROM DIS-CHEM THAT THE POLICY WAS NO LONGER IN EFFECT

The trade union gave Dis-Chem until Friday, 21 October, to confirm this or face legal action.

According to Solidarity, Dis-Chem has ignored this deadline. 

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“The entire South Africa wants to know whether Dis-Chem has only withdrawn the controversial memorandum or the policy as well.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,”

Dr Dirk Hermann, Solidarity’s chief executive, said.

ALSO READ: Steve Hofmeyr hints at Dis-Chem boycott after leaked letter

 According to Solidarity, Dis-Chem goes beyond what the Employment Equity Act allows. 

‘DIS-CHEM GOES BEYOND WHAT THE EMPLOYMENT EQUITY ACT ALLOWS’

Solidarity’s litigation strategy will be a mix of an application for the disclosure of information and an application to the Labour Court to declare Dis-Chem’s racial policy unlawful.

Solidarity furthermore said the Employment Equity Act prohibits absolute ceilings and quotas and requires 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,” Hermann said.

BUT WHAT DOES THE LAW SAY: 

According to a report by BusinessTech the Department of Employment and Labour has expressed mixed feelings on the matter.

The department said that while the Dis-Chem CEO’s stance does not appear to be against the letter of the law, his position is against the spirit of employment equity and affirmative action and could amount to ‘malicious compliance’ with the laws.

It said that the Employment Equity Act (EEA) provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice – but preferential measures taken by a designated employer should exclude quotas.

The report stated that the department said:

“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.”

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

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