Employment

Equity
Unit 4
Chapter 5 of the textbook

Ms K Letsiri
 MODULE OVERVIEW

The
common Basic
Introduction
law and the conditions Employment Collective
to Labour Dismissal
individual of equity Labour Law
Law
employment employment
contract

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 SCENARIO

Difa, a sergeant in the South African National Defence Force (SANDF), is dismissed after
refusing to adhere to the SANDF guidelines that require all soldiers to be either clean-
shaven or wear neatly trimmed beards. Difa recently joined the Nazarenes, a religious group
that follows some specific dictates of the Old Testament, and that does not allow men to trim
their beards. Should the SANDF have accommodated Difa’s religious beliefs and does his
dismissal amount to discrimination on the basis of religion?

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 INTRODUCTION

• The Employment Equity Act 55 of 1998 (EEA)

• Supplemented by:
1. The Labour Relations Act 66 of 1995 ( which regulates discriminatory dismissals)
2. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 200
(“PEPUDA” – which provides protection against discrimination for those not
covered under the EEA, e.g., members of the SANDF, National Intelligence Agency
and the South African Secret Service

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 INTRODUCTION

• The Constitution prohibits “unfair discrimination” on both listed and unlisted grounds
(section 9)
• The constitutional right is therefore based on the notion that –
 the achievement of equality requires
 certain groups or persons to be treated differently
 to ensure that they attain full equality
 with others who have not been disadvantaged

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 INTRODUCTION

South African courts tasked to resolve dispute between

Achieving a more equal

Ensuring equal treatment of all distribution of welfare or
citizens regardless of arbitrary resources among citizens who
characteristics such as race and may require, different treatment
sex on the grounds of those very
same characteristics

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 PURPOSE OF THE EEA

1. To eliminate discrimination in the workplace

2. To make provision for affirmative action measures
3. To redress disadvantages in employment experience by designated groups
4. To ensure equitable representation in all categories and levels in the workplace

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 APPLICATION OF THE EEA

• All employees and employers + job applicants

• What are the obligations of “every employer”?
 Designated employer
 Affirmative action obligations only applicable to them
 Employ 50 or more employees

 Non-designated employer
 May notify Director-General of the Department of Labour
 Intend to voluntarily comply
 Once notification is given all provisions become applicable
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UNFAIR
DISCRIMINATION
 SECTION 6(1) OF THE EEA

“No person may –

• unfairly discriminate,
• directly or indirectly,
• against an employee,
• in any employment policy or practice,
• on one or more grounds,
• including –
• race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin,
colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth OR on any other arbitrary ground.”

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 SECTION 6(1) OF THE EEA

Four important elements of this provision are:

1. Discrimination as such is not prohibited, only unfair discrimination.
2. Both direct and indirect discrimination are prohibited.
3. The prohibition aims primarily to protect employees against the policies and practices of
employers.
4. The provision contains a list of twenty grounds on the basis of which discrimination is
prohibited.

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 SECTION 6(1) OF THE EEA

The EEA also addresses a few closely related issues such as:
1. It declares harassment to be discrimination
2. It considers unequal pay for equal work based on any listed or arbitrary ground to be a
form of discrimination
3. It regulates the testing (both medical and psychological) of employees
4. It provides for the procedure to follow in pursuit of a claim for unfair discrimination

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 DIFFERENTIATION

• Differentiation = employer treats employees or applicants for employment differently or

that the employer uses policies or practices that exclude certain groups of employees
 One applicant is appointed, and another is not
 One employee is promoted, and another is not
 An employer requires educational qualifications

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 DISCRIMINATION THAT IS UNFAIR

• Despite negative connotations associated with the term “discrimination”, not all
discrimination is necessarily unfair discrimination

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 THE TEST FOR UNFAIR DISCRIMINATION

• STAGE 1: ESTABLISHING DISCRIMINATION

 On one of the listed ground
 Or on a so-called unlisted “arbitrary” ground – it must be shown that this ground is
based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons in a comparably serious manner

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 THE TEST FOR UNFAIR DISCRIMINATION

• STAGE 2: DETERMINING THE FAIRNESS OR OTHERWISE OF

DISCRIMINATION
 If an employee is successful in linking the differentiation with a listed ground, this is
not only discrimination, but the discrimination is also presumed to be unfair
 The onus then shifts to the employer to show that it was fair

 If an employee is successful in linking the discrimination with an unlisted ground,

this is also discrimination BUT there is no presumption of unfairness
 The employee will then have to show that the discrimination was unfair

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JUSTIFYING UNFAIR DISCRIMINATION
 SPECIFIC DEFENCES

• Section 6(2) of the EEA: it does not amount to unfair discrimination to –

 take affirmative action measures consistent with the purpose of the EEA; or
 distinguish, exclude, or prefer any person on the basis of an inherent requirement of
a job

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 (1) AFFIRMATIVE ACTION

• Has to be designed to ensure that suitably qualified people from designated groups have
equal employment opportunities & are equitably represented in all occupational
levels
 there is no need for an employer to raise affirmative action as a defence unless there
has been claim of discrimination
 the courts have required that affirmative action measures be applied rationally and
fairly:
1. do the measures target people or categories of people who have been
disadvantaged by unfair discrimination?
2. are such measures designed to protect or advance such people?
3. do the measures promote the achievement of equality?
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 (1) AFFIRMATIVE ACTION

South African Police Service v Solidarity obo Barnard (“Barnard case”

Barnard (a white woman) had progressed through the ranks of the South African Police
Service over a period of 18 years to the rank of captain. An employment equity plan was in
place. One of its many objectives was ‘service delivery improvement’ across all sectors of
the police. Barnard applied for promotion to a new post of Superintendent. Two rounds of
interviews were held in which Barnard obtained the highest score but on both occasions the
post was not filled. Barnard approach the CCMA claiming that her employer's refusal to
appoint her to the vacant post constituted an act of unfair discrimination.

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 (1) AFFIRMATIVE ACTION

South African Police Service v Solidarity obo Barnard (“Barnard case”

SCA
The court applied the unfair discrimination test to the claim despite the explicit rejection of
that approach towards affirmative action claims by the Constitutional Court previously. As a
result, the SCA presumed that the affirmative action measures adopted by the employer was
unfair and shifted the onus to the employer to justify it, in other words to prove that the
decision not to appoint the applicant did not amount to unfair discrimination. The SCA held
that the SAPS had not discharged that duty finding its reasoning not to appoint the applicant
scant and contrived. The court therefore held that the applicant had been unfairly
discriminated against on the ground of race.

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 (1) AFFIRMATIVE ACTION

South African Police Service v Solidarity obo Barnard (“Barnard case”

CC
The CC found in favour of the SAPS and held that Captain Barnard had not been unfairly
discriminated against on the basis of their race. In doing so the Court rejected the approach
to affirmative action claims adopted by the SCA. The CC pointed out that the SCA had erred
in applying the unfair discrimination test to the case which made any differentiation on a
listed ground presumptively unfair. The court held that in order to evail itself of the
affirmative action defence, an employer will have to prove that its actions are consistent
with the purpose of the EEA. It found that the National Commissioner exercised his
discretion not to appoint Captain Barnard rationally and reasonably in pursuit of
employment equity targets.
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 (2) INHERERENT REQUIREMENTS OF THE JOB

• An inherent requirement of the job is a personal or physical characteristic that an

employee needs to have in order to be able to perform the essential functions of the job
• It must be genuinely required and not merely discrimination by the employer in another
for
• Examples of justifiable discrimination
 A gay bar only employs bartenders who are gay
 A Catholic school seeks to appoint a principal who is Catholic

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 (2) INHERERENT REQUIREMENTS OF THE JOB

• Woolworths (Pty) Ltd v Whitehead – an employer’s requirement that an employee work

for at least 12 months was an inherent requirement of the job (non-appointment of a
pregnant employee)

• Hoffman v South African Airways – being HIV-negative is not an inherent requirement of

the job of a cabin attendant (the applicant who was HIV-positive was not appointed due to
her status)

• Independent Municipal and Allied Workers Union v City of Cape Town – not being
dependent on insulin is not an inherent requirement for the job of a fire fighter

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 (2) INHERERENT REQUIREMENTS OF THE JOB

• Dlamini v Green Four Security – employees who were followers of the Nazarene faith,
were not unfairly dismissed for refusing to shave or trim their beards and that the
employer’s policy that security guards should be clean-shaven was justified as an inherent
requirement of the job

• Jansen van Vuuren v SA Airways (Pty) Ltd – a retirement age of 60 was not an inherent
requirement of the job of a pilot. The relevant consideration was the pilot’s fitness to fly

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 DIRECT & INDIRECT DISCRIMINATION

• Direct = when the criteria on which differentiation is based are themselves unfair
• E.g., when an employer treats a female employee less favourably that it does to a man
• Motive or intent need not be established

Swart v Mr Video (Pty) Ltd

The employer sought to employ a shop assistant and stipulated that applicants
should be btw the ages 18 and 25. A 28-year-old applied & was refused
employment because she did not meet the employer’s age requirements. The
CCMA held that by limiting the pool of applicants to those btw the ages of 18 and
25 the employer had unfairly discriminated against the applicant because of her
age and the employer could not justify the limitation it had place on recruitment.

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 DIRECT & INDIRECT DISCRIMINATION

• Indirect = when criteria that are fair in form (on the face of it) produce discriminatory
results
• Subtle, seemingly neutral differentiation between employees in a way that amounts to
discrimination
Griggs v Duke Power Company
The employer made it a requirement for recruitment and promotion that workers
have a high school education and an acceptable rating in aptitude tests. These
criteria were, on the face of it, neutral, but their application had a disproportionate
impact on Black people on the community. The US Supreme Court refereed to the
‘inbuilt headwind’ faced by member of racial or social minorities that is often built
into the fabric of society.

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THE MEANING OF EMPLOYMENT POLICY OR PRACTICE

• SELF – STUDY
• PAGE 74

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 THE GROUNDS OF DISCRIMINATION

• SELF – STUDY
• LISTED AND UNLISTED (ARBITRARY GROUNDS)
• PAGE 75

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HARASSMENT
 HARASSMENT

• The EEA does not define ‘harassment’

• Code on the Prevention & Elimination of Harassment in the Workplace, 2022
 Unwanted conduct which impairs dignity;
 creates a hostile or intimidating work environment; and
 is related to one or more pr0hibited grounds of discrimination.
• Includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse,
gender-based abuse
• Slandering; withholding work-related info; sabotaging work performance; boycotting or
excluding an employee form work-related activities; threats and the inspiration of fear
and degradation

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 SEXUAL HARASSMENT

Unwanted conduct of a sexual nature including physical, verbal or non-verbal conduct

whether expressed directly or indirectly
• Physical = ranges from touching to sexual assault and rape; strip searching; watching;
following; sexual attention, advances or proposals

• Verbal = unwelcome innuendos; suggestions and hints; sexual advances; comments with
sexual overtones; sex-related jokes; graphic comments about a person’s body, whistling;
sending messages with explicit content

• Non-verbal = unwelcome gestures; indecent exposure and display

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 SEXUAL HARASSMENT

• Code requires employers to develop sexual harassment policies

• s 60 of the EEA – an employer may be held liable for acts of sexual harassment by its
employees

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 THE TEST FOR SEXUAL HARASSMENT

1. Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual
orientation;

2. Whether the sexual conduct was unwelcome;

3. The nature and extent of the sexual conduct; and

4. The impact of the sexual conduct on the employee

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 SEXUAL HARASSMENT

Simmers v Campbell Scientific Africa (Pty) Ltd

The senior manager (S), a consultant (C) and a female consultant (M) travelled from SA to
Botswana on a work assignment & stayed at the same lodge. While they were waiting in the
parking lot, S – who was 25 years older than M, asked her if she wanted a lover for the
night. M made it clear that she was not interested & that she had a boyfriend. S further asked
questions about her relationship, complained about being lonely & asked if M wanted to go
for a walk alone with him to go to his room. When she again refused, he persisted, adding
that if she were to change her mind, she should come to his room during the night.
S told C about the conversation. C conveyed it to the managing director and after a
disciplinary hearing for sexual harassment & unprofessional conduct, S was dismissed.

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 SEXUAL HARASSMENT

Simmers v Campbell Scientific Africa (Pty) Ltd

The CCMA upheld the dismissal. On review to the LC, S was reinstated with a warning. On
appeal to the LAC, the court found that the 8 sexual advances or questions by S were indeed
of a sexual nature and constituted sexual harassment. It was not a matter of S just “trying his
luck”.

Therefore, the court found that S had been fairly dismissed.

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EQUAL PAY FOR EQUAL WORK
 EQUAL PAY FOR EQUAL WORK

• The EEA has only recently recognised & regulated

Mangena v Fila South Africa (Pty) Ltd

Payment of remuneration is an employment policy or practice and paying an employee less
than another for performing the same or similar work on a specified or unspecified ground
(unlisted/unlisted) constitutes less favourable treatment.

Therefore, any claim for equal pay for work that is the same or similar fell to be determined
in terms of the EEA,

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 EQUAL PAY FOR EQUAL WORK

• SAME OR SIMILAR WORK

 is identical or interchangeable;
 substantially the same or is so sufficiently similar that the employees can reasonably
be considered to be doing the same job

• TEST
 identify a comparator;
 establish that the work done by the comparator is the same as or similar to that of the
claimant

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 EQUAL PAY FOR EQUAL WORK
• WORK OF EQUAL VALUE
 when 2 employees at the same employer do different jobs, but their respective jobs
are given the same value i.t.o certain factors:
 the responsibility demanded; the skills, qualifications required; the physical, mental
& emotional effort required; conditions under which work is done – physical,
psychological, time, place
• TEST
 identify a comparator;
 establish that the jobs of the comparator & claimant are of equal value – required
degree of skill, physical and mental effort, responsibility etc;
 lay a proper foundation to enable the court to assess
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 EQUAL PAY FOR EQUAL WORK

• FACTORS THAT MAY JUSTIFY DIFFERENT PAY – USED BY EMPLOYER

 seniority or length of service
 qualifications, ability, competence, exceeding minimum standards
 performance, quality and quantity of work
 a shortage of relevant skills or the market value of a specific job classification

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 EQUAL PAY FOR EQUAL WORK

• UK – the following positions have been held to be of equal value

1. Primary school classroom assistant library service driver messenger
2. School nursery nurse local gov’ architectural technicians
3. Nursing home sewing assistant plumber
4. Head of speech & language therapy service head of hospital pharmacy service
5. Canteen workers and cleaners clerical workers

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MEDICAL & PSYCHOMETRIC TESTING
 MEDICAL & PSYCHOMETRIC TESTING

• “Medical testing” – any test, question, enquiry or other means designed to ascertain
whether an employee has any medical condition

• Is prohibited unless:
1. permitted in terms of legislations (e.g., OHS)
2. is justified in light of medical facts, employment conditions, social policy, the fair
distribution of employee benefits or inherent requirement of the job

• E.g., = health or clinical status; genetic screening; disability-related exams; illegal drug
and alcohol dependency

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 MEDICAL & PSYCHOMETRIC TESTING

• HIV-testing – treated separately

 EEA = the testing of an employee to determine his/her HIV status is prohibited
unless the LC determines that it is justifiable
 Unfortunately, Act does not list justifiable grounds

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 PSYCHOLOGICAL TESTING

• Is prohibited unless:
1. is scientifically valid and reliable;
2. can be applied fairly to all employees;
3. is not biased against any employee or group;
4. has been certified by the Health Professions Council of SA

• E.g., intelligence and aptitude tests; work sample tests; psychological and personality
inventories; honesty tests; role-playing exercises and physical tests

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