We need alternative dispute resolution
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