CHAPTER 12
EMPLOYMENT EQUITY AND ITS CONSTITUTIONAL CONTEXT
This chapter focuses on the protection of employees against unfair discrimination and the employers
obligation to promote affirmative action.
Section 9 of the constitution provides that:
1. Everyone is equal before the law.
2. The state may not unfairly discriminate directly/indirectly against anyone on one or more grounds
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.
3. Discrimination on one or more of the grounds listed in (3) is unfair unless it is establish that
discrimination is fair.
NB: section 187 (2) exceptions
1. if party has reached agreed / normal retirement age.
2. Inherent job requirements.
Employment Equity Act
Section 2 : The purpose of the Act is to achieve equity in the workplace by:
Promoting equal opportunity and fair treatment in employment through elimination of unfair
discrimination.
Implementation affirmative measures to redress the disadvantages in employment experienced by
designated groups, in order to ensure their equitable representation in all occupational levels in
workforce.
The prohibition of unfair discrimination
Section 6 of the EEA provides that:
1.No person may unfairly discriminate, directly or indirectly against an employee, in any employment
policy or practice on ethnic or social origin, colour, sexual orientation, age, etc.
2. It is not unfair discrimination to:
(a) take affirmative action measures consistent with the purpose of this Act.
(b) distinguish, exclude or prefer any person on the basis of an inherent requirements of the job.
Who is protected
- Section 6 protects all employees in terms of LRA, including candidates for employment contract,
independent contractor, independent organisations providing employee benefits ( eg. Provident fund).
What is the meaning of unfair discrimination
- Discrimination is often equated to differentiation.
-Treating employees differently by including some and excluding others.
-Generally, differentiation only becomes discrimination if the differentiation is based on unacceptable
reasons.
The meaning of unfair discrimination
- Neither the constitution or the EEA prohibits discrimination but both prohibit unfair discrimination.
-Section 11 of EEA distinguishes between listed and unlisted grounds.
1. If unfair discrimination is alleged on the ground listed in section 6(1), the employer against whom the
allegation is made must prove on a balance of probabilities, that such discrimination:
(a) did not take place as alleged or
(b) is rational and not unfair, or is otherwise justifiable.
2. if the discrimination is alleged on the arbitrary ground, the complainant must prove on balance of
probabilities.
(a) the conduct complained of is not of rational.
(b) the conduct complained of amounts to discrimination.
(c) the discrimination is unfair.
Direct and indirect discrimination
-Direct discrimination is relatively easy to recognise and occurs where differential treatment of employees
is clearly expressly based on one or more grounds of the prohibited grounds of discrimination.
-Indirect discrimination occurs where an employer applies a policy, a requirement or a condition that
appears neutral, equally to employees.
-However, the application of that policy has a disproportionate effect on a certain group of employees.
Justifying discrimination
1. Inherent job requirements
-in responding to a charge of discrimination an employer may argue that the discrimination is justified
because of inherent job requirements of the job.
Dothard v Rawlinson
-The employer may argue that the physical requirements of the job make it necessary for employees
to have certain physical characteristics. But the employer will have to prove that certain characteristics
are indeed an inherent requirement of a job.
Affirmative action
-Section 6 (2) provides that affirmative action is not unfair discrimination.
Harassment
- section 6(3) of the EEA provides that harassment is a form of unfair discrimination.
-The term sexual harassment refers, in the first instance, an unwelcome conduct of sexual nature.
-Physical conduct , ranging from touching to sexual assault, rape and including strip search by/in the
presence of opposite sex.
-Verbal conduct, including innuendoes, suggestions and hints, sexual advances, etc.
-Non-verbal conduct, including gestures, indecent exposure.
Employer’s Liability
- Section 60 of EEA
- The sexual harassment conduct complained of was committed by another employee.
-It was sexual harassment constituting unfair discrimination.
-the sexual harassment took place at the workplace.
-The harassment was immediately brought to the attention of the employer.
-The employer was aware of the incident of sexual harassment.
-The employer failed to consult relevant parties and take necessary steps.
- The employer failed to take all reasonable and practical measures to ensure that employees did not
act in contravention of EEA.
Medical and psychological testing
-Section 7 of EEA prohibits the medical testing of employee unless legislation requires / permits the testing or its
justifiable.
-It can be justified under:
* Medical facts, employment conditions, social policy, fair distribution of employees benefits.
Affirmative action
- Affirmative action is substantive approach to equality.
-Section 9(2) of the constitution allows for legislative and other measures designed to protect and advance,
persons, or categories of persons, disadvantaged by unfair discrimination.
Minister of Finance v Van Heerden
-3 requirements of affirmative action
* it is the measure that target people who have been disadvantaged by unfair discrimination.
*the measure must promote the achievement of equality.
The goal of affirmative action
- According to section 2 (b) of EEA, the goal of affirmative action should be taken by designated
employers to ensure the equitable representation of suitably qualified persons from the designated
groups in all occupational levels in the work place.
The beneficiaries of affirmative action
2 Requirements
-The person must be suitably qualified
-and must be from the designated group
*Designated groups
-black people ( African, Coloured & Indians)
-women
-people with disability
Who must implement affirmative action
- an employer who employs 50/more employees
-an employer with fewer employees but have an annual turn over that exceeds the level laid down in
schedule 4 of EEA.
-organs of state.
-An employer appointed as a designated employer in terms of collective agreement.
The employment equity plan
- Employer must consult employees, trade unions in terms of section 16.
- Employer must use analysis to identify barriers which affect people from the designated group.
-Secondly, a profile of employers workforce should be compiled.
-It will assist the employer to determine the degree of under representation.
- Section 20 the employer will prepare and implement an employment equity plan which will achieve
reasonable progress.
Reporting
- Employers must submit their reports to department of labour.
CHAPTER 13
COLLECTIVE LABOUR LAW
- This chapter deals with legal rules governing the relationship between employers' and employee
collectively.
-This is referred to as collective labour law.
-Labour legislation seeks to regulate the relationship between these collective groupings in orderly and
equitable manner.
Collective labour law is the body that regulates collective relationships
*between employees and trade union they belong to
*between employers and that employers organisation they belong to.
*between employers, employers organisation and the trade unions.
*between the state and trade unions
* between the state and employer’s organisations
Constitution
- section 23 of the constitution makes specific provisions regarding labour relations and particularly
applies to collective labour law.
LRA
-will also reflect a lot on the objectives of LRA as stated in Section 1 of the LRA.
The promotion of collective bargaining and related rights
-Protection of freedom of association.
-Granting organisational rights
*protection of strikers and lockouts ( Chapter 18)
* Bargaining councils (Chapter 16 &17)
* Workplace democracy (Chapter 20)
