It has been seven years since Captain Barnard took on the SAPS over their failure to promote her. The SAPS justified their failure to promote her on the contents of their affirmative action policy and recently succeeded in taking the decision of the Labour Court on Appeal, after that Court had finally awarded Captain Barnard her promotion
Trade union Solidarity, acting on Captain Barnard’s behalf has indicated that they will be taking the decision of the Labour Appeal Court (LAC) on appeal to the Constitutional Court. This will be the first time that the Constitutional Court has been asked to apply its mind to affirmative action in this context.
The LAC concluded that the Labour Court cannot dictate to the National Commissioner that a post must be filled or rule that service delivery has been compromised by keeping a position vacant, pending the appointment of a designated employee. The Labour Court had previously concluded that a failure to promote Captain Barnard compromises service delivery and that consequently she should be promoted.
Solidarity is of the view that over and above compromised service delivery, that the rights of equality and dignity of non-designated employees are being breached by the SAPS’ affirmative action policy.