LAW AND DISCRIMINATION IN WORKPLACE
WE HAVE unfair discrimination in the workplace despite a wonderful Constitution and much legislation since 1994.
The issue has become a complex part of labour legislation and is often difficult to implement properly. We need to look carefully at discrimination – including racial, gender and disability problem areas.
The preamble to the Employment Equity Act states that we need to promote the constitutional right of equality and exercise of true democracy. We need to eliminate unfair discrimination in employment and ensure the implementation of employment equity to redress the effects of discrimination.
Our Constitution saw fit to implement the rights of redress and social engineering to try to correct the imbalance of the past. Although I do not believe that it is e
ffective, it is important as it is on our statute book and we need to deal with it effectively. We cannot ignore laws, even if some of the laws translate into an inefficient and cumbersome system.
Unfortunately, the Employment Equity legislation has not worked and disparities in the workplace remain. For instance, more than 8% of our population has a disability but the employment arena reflects less than 1%.
Our government has set targets of 3% over the past 10 years but the government itself had never been able to achieve targets beyond 1% of employment of people with disabilities.
Everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9 of the Constitution states: “Equality includes the full and equal enjoyment of all rights and freedom.
“To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or category of person, disadvantaged by unfair discrimination may be taken.”
It must be noted that we have the concept known as fair discrimination. In other words, we can discriminate under certain circumstances to try to achieve that equality.
It is that fair discrimination that creates many of the problems in South Africa today.
A month after we passed our Constitution, South Africa ratified the International Labour Organization (ILO) Convention 111 which prohibited discrimination in the workplace. Two years thereafter, we enacted the Employment Equity Act under which Section 7 outlines the prohibition of unfair discrimination.
Every time we argue the prohibition of discrimination on listed or unlisted grounds, as set out in the Equity Act, we need to bear in mind compliance with the ILO.
South Africa has endorsed the ILO Convention and every court case in our Labour Court and our Constitutional Court on the topic will be subject to this ILO Convention.
The legislation places a duty on the lawmaker to eliminate unfair discrimination. The duty prohibits unfair discrimination against employees and places a duty on employers to eliminate it. In other words, all employers have to promote equal opportunity in the workplace.
The legislation specifically looks at designated employers, that is employers who employ 50 or more employees and employers who employ fewer than 50 employees but have an annual turnover that is equal to or above the applicable turnover of a small business as defined in Schedule 4.
The legislation also talks about designated groups – which means black people, women and people with disabilities who are South Africans by birth or naturalisation before April 1994.
The employment policy of practice must include all the recruitment procedures, advertising and selection criteria and appointments and the appointment process.
This would likewise be applicable to all promotions in the workplace. In essence, it will not be unfair discrimination to take affirmative action measures consistent with the purposes of the Employment Equity Act.
Likewise, it is not unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
All affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workplace of a designated employer.