Labour Law – ARR224

1. Labour Law – ARR224 Lecture 10 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 • Explain sect 9 of the Constitution and indicate the influence on the Employment Equity Act. • Explain which employees are covered by the Employment Equity Act. • Briefly explain what is meant with ‘designated employer’ and ‘designated group’.

4. EEA (Introduction) • Dramatic changes over last few years. • Originally developed on case by case basis, but legislation such as Constitution, LRA and BCEA led to development of EEA. • Chapter 2 of EEA came into operation on 9 August 1999, and rest of Act took effect on 1 December 1999. • Constitutional equality, as formulated in sect 9 of Constitution, forms backdrop of EEA and must always be considered when studying EEA.

5. White and Black issues were addressed.

6. EEA (Constitutional equality I) Equality clause – Sect 9(1) • Neither the State nor anyone else may directly/indirectly discriminate against anyone on grounds stipulated in Constitution. • Formulation of sect 9(1) in line with wording found in many constitutions all over world. • Everyone is equal before the law. • Right to equal protection of the law is guaranteed in this section. • Can be regarded as typical embodiment of equality as fundamental value that must be upheld.

7. Purpose : no discrimination in the workplace.................

8. EEA (Constitutional equality II) Affirmative action clause – Sect 9(2) • In old SA many people were discriminated against unfairly, and AA was (is) required to address inequities of past. • Equality includes equal enjoyment of all rights and freedoms. Hence the requirement in sect 9(2) that measures be taken to protect people who’ve been disadvantaged by unfair discrimination. AA is measure introduced by law to create equal opportunities in workplace. • For an interesting case of a challenge to affirmative action see Motala and Another v University of Natal.

9. EEA (Constitutional equality III) Anti-discrimination clause – Sect 9(3),(4) en (5) • Discrimination refers to “different treatment of different people”. • Not discrimination per se that should be eradicated, but unfair discrimination. • Unfair discrimination refers to practice of selecting between people/groups arbitrarily or by using inappropriate criteria. • 4 possible meanings that can be attached to concept of discrimination: • Neutral meaning • Reverse discrimination • Pejorative meaning of unfair difference in legal, social or economic treatment of persons • Careful observation of distinctions, having good judgment • In 3rd instance emphasis is on “unfair”. BCEA prohibits employment of pregnant women for period of 4 months. Discrimination based on gender, but it is not unfair. • In 4th instance positive meaning is attached to discrimination. Could indicate that failure to discriminate accurately in certain circumstances could be unjust. Failure to differentiate between individual cases when deciding on an appropriate sanction for misconduct. • Discrimination is qualified by word “unfair” to distinguish between pejorative and benign meanings of word. Qualification makes it clear that it’s not differentiation that is prohibited, but invidious differentiation. (Chirach Tyre Company (Pty) Ltd t/a Falcon Tyre Centre v Minister of Trade and Industry and Another). • Nobody may unfairly discriminate, directly/indirectly, against another on one/more of following grounds: race, gender, sex, pregnancy, marital status, ethnic/social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth). • List preceded by word “including”, which indicates that unfair discrimination not limited to stated grounds only. • Sect 9(3) and (4) provides for direct and indirect unfair discrimination: • Direct Occurs where person is treated differentially because he belongs to particular category and such treatment is to his disadvantage. E.g.: where advertisement calls for males only to apply for position, it constitutes direct discrimination against women. • Indirect Where neutral criteria are used to make decisions, e.g. selection for employment, but these so-called objective criteria operate to systematic disadvantage of particular category of persons. E.g.: where a minimum weight or height is required for a certain job, it will exclude more females than males from being able to apply for the position (Langemaat v Minister of Safety and Security and Others). • In City Council of Pretoria v Walker held that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination. For this reason that legislature addressed both direct and indirect discrimination. • Intent to discriminate need not be proven. Must objectively prove that differentiation took place and that differentiation was unfair.

10. Anti Discrimination: fat and thin

11. EEA (Constitutional equality IV) Proof of discrimination • Any person alleging discrimination on one/more of grounds listed (applicant), must be able to prove it. • Sect 9(5) provides for rebuttable presumption that discrimination is unfair. Onus now shifts to respondent to show that discrimination is not unfair. • Note so-called “business necessity defence”: mere fact that certain types of work have traditionally been reserved for men/are regarded as unsuitable for women, will not stand constitutional scrutiny in absence of rational and/or empirical proof! • If applicant relies on form of discrimination not listed in sect 9(3), onus rests with him to show: • That discrimination took place. • To prove that discrimination was unfair. (Harksen v Lane NO and Others 1997(11) BCLR 1489 CC)

12. EEA (Objectives) • Main purpose of EEA is to achieve equality in employment through promoting equal opportunities and fair employment practices. • Abovementioned is achieved by eradication of unfair discrimination and implementation of AA. • Employers must eradicate unfair discrimination and designated employers must prepare and implement employment equity plans. • Distinguish between aim of employment equity and manner in which one goes about achieving it.

13. Anti discrimination provisions application and exclusions

14. EEA (Application I) • Applies to all employees and employers except to members of SANDF, National Intelligence Agency, SA Secret Service, SA National Academy of Intelligence and directors and staff of Comsec. • Employees excluded from Act can bring unfair discrimination matters before Constitutional Court/lodge complaints with Human Rights Commission. • Also binds State. • Chap 2, prohibiting unfair discrimination, applies to all employees and employers. All employers must take steps to promote equal opportunity in workplace and to eliminate unfair discrimination in any employment policy or practice.* Job applicants are, for purpose of Chap 2, regarded as “employees” and can rely on provisions if they allege that non-appointment to post was due to unfair discrimination. • Chap 3 requires AA to be implemented and applies to “designated employers” and people from “designated groups” only. • Designated employer is: • Person who employs 50/more employees. • Person who employs < 50 employees, but has total annual turnover =/> applicable turnover of small business i.t.o. Sch 4. • Municipality. • Organ of State, excluding local spheres of government, SANDF, National Intelligence Agency and SA Secret Service. • Employer who, i.t.o. collective agreement, becomes designated employer to extent provided in collective agreement.

15. EEA (Application II) • Employers excluded from Chap 3 may become subject to it in one of following manners: • Employer who is not designated employer may notify DG that it intends to comply with Chap 3 as if it was designated employer. • If LC decides that employer has unfairly discriminated against employee, LC may make order directing that employer comply with Chap 3 as if it was designated employer. • Designated groups are: • Black people. (Include Africans, Coloureds, and Indians) • Women. • Persons with disabilities. • Although Act distinguishes between Africans, Coloureds and Indians and between blacks, women and disabled people, no preferential ranking is specified. • * Definition of employment policy/practice is as follows: 'employment policy or practice' includes, but is not limited to- (a) recruitment procedures, advertising and selection criteria; (b) appointments and the appointment process; (c) job classification and grading; (d) remuneration, employment benefits and terms and conditions of employment; (e) job assignments; (f) the working environment and facilities; (g) training and development; (h) performance evaluation systems; (i) promotion; (j) transfer; (k) demotion; (l) disciplinary measures other than dismissal; and (m) dismissal.