Labour Law – ARR224

1. Labour Law – ARR224 Lectures 13-14 The Employment Equity Act, 55 of 1998

2. Prescribed material Study: • PGL (Chapter 4 par 4.4-4.6 & 4.8) • Case law (as indicated in Study Guide) Read: • PGL (Chapter 4 par 4.1-4.3, 4.7 & 4.9-4.10) • LRL (Pp 629-662) • CLL (Pp 830-883)

3. Learning outcomes • Discuss the functions and role of the CEE.

4. EEA (Commission for Employment Equity) • Established i.t.o. Chap IV of EEA. • Consists of chairperson and 8 other members appointed by Minister. Members nominated by stakeholders in NEDLAC. • In main an advisory body. Advise Minister on Codes of good practice and policy and any other matters concerning EEA. • May make awards, recognizing achievements of employers in furthering purpose of EEA. • May also do research and report to Minister on any matter relating to application of EEA. • Must submit annual report to Minister. • In performing its functions, CEE may call for written and oral representations from public.

5. EEA (Monitoring, enforcement and legal proceedings I) • Chap V: employees, trade unions, labour inspectors and the DG all play important role in monitoring compliance with EEA. • Register of designated employers that submitted employment equity records also kept by Minister. • Any employee/trade union representative may bring alleged contravention of EEA to attention of another employee/employer/ trade union/workplace forum/labour inspector/DG/ECC.

6. EEA (Monitoring, enforcement and legal proceedings II) Labour inspectors • Inspectors’ powers include the following: • Enter any workplace, question any person and inspect documents, books etc in attempt to establish whether employer is complying with EEA. • Request written undertaking from employer to comply with certain matters. • Issue compliance orders. • Written undertakings must be obtained within specified period if inspector has reasonable grounds to believe that employer has failed to consult with employees/ conduct an analysis/prepare and implement employment equity plan/submit and publish employment equity report/prepare successive employment equity plan/assign responsibility to senior managers/inform employees/to keep records. • May issue compliance order if employer has failed to give written undertaking/failed to comply with such undertaking. • Copy of compliance order must be served on employer, who must display it at each workplace named in that order. • May not issue compliance order if employer is under review by DG • or if DG has referred issue to LC. • Objection to compliance order may be made to DG within 21 days after receipt. May also appeal to LC within 21 days after DG’s order.

7. EEA (Monitoring, enforcement and legal proceedings III) Director-General • Functions of DG fall into 2 categories: • Assessment of compliance Must determine if designated employer made reasonable efforts to implement equity plan, asses progress, etc. Followingmust be taken into account: • Extent to which suitably qualified people from and among different designated groups are equitably represented. • Pool of suitably qualified people from designated groups from which employer may be expected to promote/appoint employees. • Economic and financial factors relevant to sector in which employer operates. • Present and anticipated economic and financial circumstances of employer. • Number of present and planned vacancies that exist and employer’s labour turnover. • Review to determine whether an employer is complying with the Act DG may: • Request employer to submit copy of analysis, plan etc. • Request meeting with employer. • Request meeting with employee. • Approve/make recommendations regarding employer’s equity plan. • Refer non-compliance to LC.

8. EEA (Monitoring, enforcement and legal proceedings IV) Labour Court • LC has exclusive jurisdiction to determine any dispute about interpretation/application of EEA. • Labour Court has: • General powers (Make compliance order an order of court; Condone late filing of documents; Direct CCMA to conduct investigation; Award compensation; Award damages; Order compliance with EEA; Impose fines; Review performances; Confirm/vary/set aside DG’s orders; Deal with any matter necessary.) • Powers i.r.o. unfair discrimination (Payment of compensation; Payment of damages; Order employer to take steps to prevent repeat of unfair discrimination; Order to comply with chap 3; Order of removal of employer’s name from register of designated employers; Publication of Court’s order.) • Powers i.r.o. medical testing (Counselling, confidentiality, authorization for testing.)

9. EEA (Sexual harassment I) Code of Good Practice on the handling of Sexual Harassment cases • Object: To eliminate sexual harassment in workplace. • Provides appropriate procedures to deal with problem and prevent its recurrence. • Encourages and promotes development and implementation of policies and procedures that will lead to creation of workplaces that are free of sexual harassment where employers and their employees respect one another’s integrity, dignity, privacy and right to equity in workplace.

10. EEA (Sexual harassment II) Application • Owners. • Employers. • Managers. • Supervisors. • Employees. • Job applicants. • Clients. • Suppliers. • Contractors. • Others having dealings with the business. • Non-employee who is victim of sexual harassment may lodge grievance with employer of harasser when harassment has taken place in workplace/in course of harasser’s employment.

11. EEA (Sexual harassment III) Definition • Sexual harassment is unwanted conduct of sexual nature. Unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. • Sexual attention becomes sexual harassment if: • Behaviour is persisted in, although a single incident of harassment can constitute sexual harassment. • Recipient has made it clear that behaviour is considered offensive. • Perpetrator should have known that behaviour is regarded as unacceptable.

12. EEA (Sexual harassment IV) Forms • May include unwelcome: • Physical conduct Includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes strip search by/in presence of the opposite sex. • Verbal conduct Includes unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes/insults/unwelcome graphic comments about person’s body made in their presence or to them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling at person/group of persons. • Non-verbal conduct Includes unwelcome gestures, indecent exposure, and unwelcome display of sexually explicit pictures and objects. • Quid pro quo harassment Occurs where owner/employer/supervisor member of management/co-employee undertakes or attempts to influence process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee/job applicant in exchange for sexual favours. • Sexual favouritism Exists where person, who is in position of authority, rewards only those who respond to his/her sexual advances, while other deserving employees who do not submit to sexual advances are denied promotions, merit rating or salary increases.

13. EEA (Sexual harassment V) Code • Item 5 - Guiding principles • Item 6 - Policy statements • Item 7 - Procedures • Employers should develop clear procedures to deal with sexual harassment. These procedures should ensure the resolution of problems in sensitive, efficient and effective way.

14. EEA (Sexual harassment VI) Confidentiality • Employers and employees must ensure that grievances about sexual harassment are investigated and handled in manner that ensures that identities of persons involved are kept confidential. • In cases of sexual harassment, management, employees and parties concerned must endeavour to ensure confidentiality at disciplinary inquiry. • Only appropriate members of management, aggrieved person with his/her representative, alleged perpetrator, witnesses and interpreter (if required) should be present at disciplinary inquiry.

15. EEA (Sexual harassment VII) Additional sick leave • Where employee’s existing sick leave entitlement has been exhausted, employer should give due consideration to granting of additional sick leave in cases of serious sexual harassment where employee, on medical advice, required trauma counselling.

16. EEA (Sexual harassment VIII) Information and education • DoL should ensure that copies of Code are accessible and available. • Employers and employer organisations should include issue of sexual harassment in their orientation, education and training programmes for employees. • Trade unions should include issue of sexual harassment in their education and training programmes for shop stewards and employees. • CCMA commissioners should receive specialised training to deal with sexual harassment cases.