Employment equity an unfair discrimination

The Employment Equity Act, 55 of 1998, deals with equity and equality rights which are protected in our Constitution.
The EEA mirrors the Constitution and determines that no person may unfairly discriminate, directly or indirectly, against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Discrimination on one or more of these grounds is unfair, unless it is established that the discrimination is fair. The EEA recognises that, as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income, within the national labour market. It further recognises that those disparities created pronounced disadvantages for certain categories of people and that those disadvantages cannot be redressed simply by repealing discriminatory laws. Therefore, the EEA aims at promoting the constitutional right of equality by eliminating unfair discrimination and ensuring the implementation of employment equity to redress the effect of discrimination by legislating Affirmative action as a measure of fair discrimination. The aim is to achieve a diverse workforce broadly representative of our people, which in turn will promote economic development and efficiency in the workplace and give effect to the obligations of the Republic as a member of the International Labour Organisation. Employers must therefore seek and eliminate unfair discrimination and implement affirmative action measures that are consistent with the EEA. In order to achieve this, employers must embark on an analysis and consultation process through employment equity forums, which must result in employment equity plans. Employers must report to the department of Labour once a year on every two years on its progress in implementation Affirmative Action.

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Other Articles in this Category:

Understanding and applying the principle of equal pay for work of equal value
Johanette Rheeder

Equal pay of equal work or value (The EEA):

Section 6 of the Employment Equity Act 55 of 1998 is amended1 to include a new sub section 4 which brings in the principle of equal pay for work of equal value”. According to the amendment, direct or indirect unfair discrimination will also include a differentiation in terms and conditions of employment of employees doing the same or similar work (substantially) or work of equal value. The employer will have to show that the differentiation in conditions of work is for a fair reasons such as seniority, years of service, experience, skill or responsibility. Should the reason for differentiation relate to any discriminatory ground, it will be unfair discrimination.

Operational requirements v cultural rights and sangoma’s
Johanette Rheeder

In the case of Kievits Kroon Country Estate (Pty) Ltd v CCMA & others[1] the proverbial can of worms was opened by the award of the commissioner. On closer scrutiny however, it is clear that the commissioner ruled on the facts before him, as commissioners should and this review of the labour court should not be seen as a blanket consent to employees to take extended and unauthorised absence from employment. On the other side, employer should respect the cultural beliefs of employees as well.

Legal aspects in recruitment and selection
Johanette Rheeder

Recruitment generally entails a process undertaken by a prospective employer, or a recruitment agent who acts on behalf of the prospective employer to attract or invite a candidate to apply for a position, to screen, select, test (e.g. competency based testing or psychometric testing) and to appoint a qualified and suitable person for a job.

Religious and Gender Discrimination
Johanette Rheeder

The issue of religious and racial discrimination and the test for discrimination was investigated in POPCRU & others v Department of Correctional Services & another (2010) 19 LC 6.12.2 and [2010] 10 BLLR 1067 (LC). The five applicant employees, all male officers at Pollsmoor Prison, Cape Town, were dismissed after they refused to obey the new commanding officer’s instruction to cut off their dreadlocks.

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