We need al­ter­na­tive dis­pute res­o­lu­tion

CityPress - - Voices - ISAAC SWAFO voices@city­press.co.za

The ground-break­ing court judg­ment that held Im­pe­rial Hold­ings Lim­ited and its chief ex­ec­u­tive Mark Lam­berti jointly and sev­er­ally li­able for im­pair­ing the dig­nity of As­so­ci­ated Mo­tor Hold­ings’ fi­nan­cial man­ager Adila Chowan pro­vides much-needed hope for vic­tims of dis­crim­i­na­tion in the work­place.

The judg­ment high­lights the chal­lenges of erad­i­cat­ing sys­temic dis­crim­i­na­tion and in­equal­i­ties in South Africa. The sad re­al­ity is that many vic­tims of dis­crim­i­na­tion can­not af­ford to ex­er­cise their rights, as it is ex­pen­sive to lit­i­gate. Ar­bi­tra­tion of dis­crim­i­na­tion dis­putes is only com­pul­sory for cer­tain cat­e­gories of em­ploy­ees. This leaves many vic­tims of dis­crim­i­na­tion in limbo, mak­ing it dif­fi­cult to break the per­va­sive cy­cle.

The fact that the Em­ploy­ment Eq­uity Act (EEA) lim­its com­pul­sory ar­bi­tra­tion of dis­crim­i­na­tion dis­putes does not pre­clude com­pa­nies from de­vel­op­ing poli­cies to ex­tend ar­bi­tra­tion to all em­ploy­ees. How­ever, this is un­likely to hap­pen, as many em­ploy­ers are well aware that the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion (CCMA) is cost-ef­fec­tive and less cum­ber­some, thus mak­ing it ac­ces­si­ble to ag­grieved em­ploy­ees.

Civil so­ci­ety, in par­tic­u­lar or­gan­i­sa­tions that rep­re­sent women, black peo­ple and peo­ple with dis­abil­i­ties, needs to fo­cus more on nudg­ing em­ploy­ers to change their at­ti­tudes to­wards com­pul­sory ar­bi­tra­tion of dis­crim­i­na­tion dis­putes for all em­ploy­ees.

Work­place dis­crim­i­na­tion is a mat­ter of public in­ter­est, as cor­rectly pointed out in the judg­ment against Im­pe­rial and its chief ex­ec­u­tive. This means that listed and state-owned com­pa­nies are duty-bound to con­sult stake­hold­ers who rep­re­sent the in­ter­ests of race, gen­der and dis­abil­ity to elim­i­nate un­fair dis­crim­i­na­tion in the work­place and to ad­vance af­fir­ma­tive ac­tion. The Com­pa­nies Act pro­vides lever­age for civil so­ci­ety to com­pel com­pa­nies to adopt al­ter­na­tive dis­pute res­o­lu­tion poli­cies. This would en­cour­age em­ploy­ees who are wary of ex­pos­ing dis­crim­i­na­tory prac­tices to be more open. Com­pa­nies are more likely to con­sider adopt­ing this kind of pol­icy if there is pres­sure from civil so­ci­ety.

The EEA re­quires em­ploy­ers to de­velop poli­cies and pro­ce­dures for res­o­lu­tion of dis­putes about the im­ple­men­ta­tion of eq­uity plans. How­ever, this is not hap­pen­ing in many com­pa­nies, as em­ploy­ers tend to use the stan­dard griev­ance pro­ce­dures that are of­ten not con­ducive to the res­o­lu­tion of af­fir­ma­tive ac­tion griev­ances. The em­pow­er­ing pro­vi­sions in the EEA and the Com­pa­nies Act need to be tested by civil so­ci­ety as a mat­ter of ur­gency.

The fo­cus on de­vel­op­ment of this pol­icy is not suf­fi­cient in it­self, as the sys­temic na­ture of the prob­lem re­quires a shift from re­duc­tion­ist think­ing, where prob­lem symp­toms tend to be treated in iso­la­tion from the fun­da­men­tal prob­lem. It is there­fore im­por­tant to also con­sider the ef­fec­tive­ness of em­ploy­ment eq­uity com­mit­tees when de­vel­op­ing and im­ple­ment­ing eq­uity plans to achieve af­fir­ma­tive ac­tion tar­gets. Ev­i­dence sug­gests these com­mit­tees are in­ef­fec­tive, which is one of the fac­tors be­hind wan­ton vi­o­la­tion of the eq­uity act. Civil so­ci­ety de­pends on the ef­fec­tive­ness of these com­mit­tees to en­sure ro­bust ap­pli­ca­tion of al­ter­na­tive dis­pute res­o­lu­tion poli­cies.

Civil so­ci­ety must in­ten­sify its ef­forts to en­sure the glar­ing short­com­ings of the labour depart­ment’s in­spec­torate are ad­dressed. It is un­ac­cept­able that many com­pa­nies con­tinue to vi­o­late the act, de­spite the amend­ments that pro­vide for fines linked to com­pa­nies’ turnover. Fail­ure to en­force the act has en­abled many com­pa­nies to be more brazen in their dis­re­gard of af­fir­ma­tive ac­tion.

The Chowan judg­ment pro­vides a win­dow of op­por­tu­nity for stake­hold­ers to build on the out­comes of the na­tional di­a­logue on busi­ness and hu­man rights that was re­cently con­vened by the SA Hu­man Rights Com­mis­sion. The com­mis­sion right­fully in­cluded busi­ness and hu­man rights as a cru­cial pil­lar in its strate­gic plan 2015 to 2020.

Ev­i­dence sug­gests that or­gan­i­sa­tions that rep­re­sent the in­ter­ests of race, gen­der and dis­abil­ity are weary of lit­i­gat­ing, ex­cept for Sol­i­dar­ity and AfriFo­rum, who have de­vel­oped ef­fec­tive lit­i­ga­tion strate­gies to pro­tect the in­ter­ests of their con­stituen­cies. It is there­fore pru­dent for in­ter­est groups to ad­vance al­ter­na­tive dis­pute res­o­lu­tion to pro­tect those who con­tinue to be ex­posed to dis­crim­i­na­tory prac­tices in the work­place. Sadly, some lead­ers in these or­gan­i­sa­tions tend to fo­cus on self-in­ter­est. Many serve as di­rec­tors in com­pa­nies that are mov­ing at a snail’s pace to im­ple­ment the EEA. It might be pru­dent for mem­bers of these or­gan­i­sa­tions to con­sider elect­ing lead­ers with track records in re­fer­ring dis­crim­i­na­tion dis­putes to the CCMA or labour courts. Rhetoric seems to be the main cri­te­ria for se­lect­ing such lead­ers.

It would be fool­hardy to as­sume that em­ploy­ers will learn from the Im­pe­rial rul­ing. There have been sev­eral judg­ments on dis­crim­i­na­tion in the work­place, yet many em­ploy­ers con­tinue the prac­tice. The need for ac­ces­si­ble, cost-ef­fec­tive and ex­pe­di­tious al­ter­na­tive dis­pute res­o­lu­tion is be­com­ing in­creas­ingly pal­pa­ble.

Swafo is a non-ex­ec­u­tive di­rec­tor and chair­man of the so­cial and ethics com­mit­tee at Com­mu­ni­care so­cial hous­ing in­sti­tu­tion. He is an af­fir­ma­tive ac­tion

lit­i­gant who has com­pleted a master’s dis­ser­ta­tion on al­ter­na­tive dis­pute res­o­lu­tion of af­fir­ma­tive ac­tion

dis­putes

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