Chapter 6 – The Right to Equality in employment: Non-Discrimination

Question 1

What kind of distinctions are usually drawn ito employment practices

Answer 1

➢ Employment practices always draw distinctions between
employees and groups of employees, and often based on immutable
or hard-to-change personal characteristics.

Question 2

Different Treatment

Answer 2

➢ This is allowed and will not constitute a contravention of the law if based on legitimate reasons.
➢ For example, higher pay due to seniority or experience.

Question 3

Discrimination

Answer 3

➢ It becomes a contravention of the law and will amount to
discrimination when differential treatment occurs for an illegitimate reason.
➢ For example paying employees differently based on their sex or gender identity.

Question 4

❖ Constitutional Provisions that encapsulate employment equality

Answer 4

Section 1 and section 9 of the Constitution

Question 5

Broad aspect of s1

Answer 5

▪ Advancement of human dignity and achievement of equality.

Question 6

Section 9 of the constitution in relation to labor equality

Answer 6

▪ Right to equality, difference between “formal equality” and
“substantive equality”

Question 7

Aspects of the constitution touching on formal equality, and explain

Answer 7

➢ Sections 9(3) and (4)
▪ The focus is on protecting individuals against discrimination by
requiring that everyone be treated the same irrespective of their circumstances.

Question 8

Aspects of the constitution touching on substantive equality, and explain

Answer 8

➢ Section 9(2)
▪ Recognises the need to treat some groups/categories of people differently in order to achieve equality.
Prohibition of unfair discrimination is thus, insufficient to achieve true equality.
▪ Affirmative action measures are required to correct imbalances suffered by specific categories of people.

Question 9

General purpose of EEA

Answer 9

To achieve substantive equality

Question 10

What does the EEA try to achieve through substantive equality

Answer 10

It tries to promote the equal treatment of employees in the workplace by eliminating unfair discrimination

Question 11

Purpose of implementing affirmative action through substantive equality

Answer 11

It tries to redress the disadvantaged experiences by designating disadvantaged people in the workplace in order to ensure that they are equally represented in the workforce

Question 12

Chapter 2 of EEA

Answer 12

The prohibition of discrimination applies to all employees and job applicants

Question 13

❖ Chapter 3 of the EEA

Answer 13

➢ Implementation of affirmative action applies only to designated
employers and employees

Question 14

➢ Section 4(3) of the EEA

Answer 14

States that the following members are excluded from applying for affirmative action:
▪ The National Defence Force
▪ The National Intelligence Agency
▪ The South African Secret Service
▪ The South African National Academy of Intelligence
▪ The Directors and Staff of Comsec.

Question 15

How does section 5 of EEA apply chapter 2?

Answer 15

➢ Elimination of unfair discrimination.
➢ Every employer must take steps to promote equal opportunity in the
workplace by eliminating unfair discrimination in any employment
policy or practice

Question 16

Section 6 of EEA on application of chapter 2

Answer 16

(1) No Unfair Discrimination – Employers cannot unfairly discriminate against employees based on factors like race, gender, disability, religion, or political opinion.

(2) Exceptions – Affirmative action is allowed, and job-related requirements can justify distinctions.

(3) Harassment = Discrimination – Workplace harassment is considered a form of discrimination and is prohibited.

(4) Equal Pay for Equal Work – Employees doing the same or similar work must receive fair treatment and pay, without discrimination based on the factors listed.

Question 17

Difference between Specified, Unspecified and Arbitrary Grounds

Answer 17

Specified Grounds – These are the clearly listed forms of discrimination in Section 6(1) of the Employment Equity Act, such as race, gender, disability, and religion.

Unspecified Grounds – These are similar to the specified grounds and also negatively affect human dignity, but they are not explicitly listed in Section 6(1). An example is citizenship—while it’s not specifically mentioned, discrimination based on it could be considered unfair if it impacts dignity.

Arbitrary Grounds – These are like unspecified grounds, meaning they aren’t clearly listed but still relate to fairness and dignity. In the Ramalia case, the court treated arbitrary grounds as similar to unspecified grounds.

Question 18

Illustrate direct discrimination ito case law

Answer 18

▪ Swart v Mr Video
* When someone is treated differently because of a certain
characteristic.
* In this case, the employer sought to employ a shop assistant
and stipulated that applicants should be between the ages
of 18 and 25.
* The applicant was 28 and the owner couldn’t give a good
reason for limiting the age pool to 18 – 25

Question 19

Illustrate indirect discrimination ito case law

Answer 19

Leonard Dingler Employee Representative Council v Leonard Dingler

The issue: A company benefit fund was only open to monthly paid employees.

The problem: This excluded most Black employees, who were less likely to be monthly paid.

The court ruling: The Labour Court found this practice discriminatory on racial grounds, as it disproportionately affected Black workers.

The evidence: Out of 50 eligible employees, only 8 were Black (16%), showing an unequal impact.

Key takeaway: Even if a rule doesn’t seem discriminatory at first, if it negatively impacts a particular group more than others, it can be ruled unfair under South African labour law.

Question 20

Definition of an “Employment Policy/Practice”

Answer 20

❖ Scope
➢ Recruitment procedures
➢ Advertising and Selection Criteria
➢ Appointments and the Appointment Procedure
➢ Job Classification and Grading
➢ Remuneration, employment benefits and terms and conditions of
employment
➢ Job assignments
➢ The working environment and facilities
➢ Training and development
➢ Performance evaluation systems
➢ Promotion
➢ Transfer
➢ Demotion
➢ Disciplinary measures other than dismissal
➢ Dismissal
Harassment as a F

Question 21

❖ General Forms of Harassment when looking at harassment as a form of unfair discrimination

Answer 21

➢ Physical Conduct
➢ Verbal Conduct
➢ Non-verbal Conduct

Question 22

❖ Different Forms of Sexual Harassment

Answer 22

➢ Victimisation
➢ Quid pro quo
➢ Sexual favouritism

Question 23

Requirements of Sexual Harassment Company Policies

Answer 23

➢ Explain that it is a form of unfair discrimination.
➢ It will not be permitted or condoned.
➢ Complainants may follow formal or informal procedures to report it.
➢ It is a disciplinary offence to victimise or retaliate against an
employee who in good faith lodges a complaint of sexual
harassment.

Question 24

BoP for establishing discrimination – Specified Grounds

Answer 24

➢ Section 11(1) of the EEA
▪ Prior to proof required by an employer in terms of section 11(1),
the claimant must lay a basis for the claim, that is something
more than a bold averment or mere allegation (as that would be
insufficient to require the employer to justify the alleged
discrimination).
▪ Employer must then prove on a balance of probabilities that
discrimination did not take place as alleged or that it was not
unfair and therefore, justifiable.

Question 25

BoP for establishing discrimination Unspecified/Arbitrary Grounds

Answer 25

➢ Section 11(2) of the EEA ▪ Claimant must show that there was no rational reason for the employer’s decision. ▪ Claimant must show that the decision amounted to discrimination based on the ground relied upon. ▪ Claimant must show that such discrimination was unfair. ▪ Here the burden is on the claimant or prove that there was unfair discrimination.

Question 26

List the Defences Against a Claim of Unfair Discrimination

Answer 26

❖ Inherent Requirement Defence ❖ Affirmative Action Measures

Question 27

List the case law applicable to the inherent requirement defense

Answer 27

Whitehead v Woolworths (Pty) Ltd Damons v City of Cape Town (NB)

Question 28

Whitehead v Woolworths (Pty) Ltd

Answer 28

▪ The court had to determine whether continuity of employment was a “necessary”, “reasonable” and “indispensable” requirement for the job. ▪ The complainant was pregnant and alleged unfair discrimination. ▪ The defence argued that there was an inherent “continuity requirement” that being that the person had to be continuously available in order to be effective. ▪ On appeal, the Labour Appeal Court was divided on the matter

Question 29

Damons v City of Cape Town (NB)

Answer 29

▪ A fire fighter became injured and could no longer operate at the same level. ▪ He was passed over for a promotion and disputed it on the grounds of unfair discrimination.

Question 30

LAC on Damons decision

Answer 30

▪ The Labour Appeal Court found that since it was not possible for Damons to perform the essential duties of a firefighter, and was it was not in the public interest for the City to have firefighters who were incapable of dealing with outbreaks of fires, there was no basis on which it could conclude that the content of the Policy or its application to the dispute constituted unfair discrimination. ▪ Definition of Inherent Requirements (NB): * Inherent requirements of the job refer to elements of a job that are essential to its outcome and part of its core activities

Question 31

General rule on affirmative action

Answer 31

▪ Courts have required that affirmative action measures be applied fairly and rationally.

Question 32

Reynhardt v UNISA

Answer 32

▪ The Labour Court found that because the university’s targets for the number of Black deans over the number of White deans had already been surpassed in terms of its own employment equity policy, the appointed of a Coloured candidate less qualified and experienced than the applicant, a White Male, who was the most suitable candidate, was a contravention of section 15(4) of the EEA and violated the University’s own employment equity measures. ▪ When targets have been met, the most suitable candidate should be appointed and affirmative action principles do not apply.

Question 33

➢ Solidarity obo Barnard v SA Police Service

Answer 33

▪ The claimant was a white female police Captain who applied for a promotion. She went through two rounds of interviews and achieved the highest score each time, and was also viewed as the only “qualified” candidate. However, she was not promoted and the position was left vacant. ▪ The Labour Court agreed with her that it was unfair and sided with Barnard. ▪ The SAPS successfully appealed to the Labour Appeal Court, and Barnard then successfully appealed to the SCA. ▪ The SCA found that it was illogical that her promotion (as the only suitable candidate) should be barred purely because she was not from a specified group. ▪ The Constitutional Court (by majority judgement) upheld the national commissioner’s decision to leave the position vacant because: * Restitutionary measures aimed at fair representation are specifically contemplated in the Constitution. * Barnard was not prevented from applying for other promotions in the future, simply because she did not get this one.

Question 34

Where must an unfair discrimination dispute be referred, and within what timeframe?

Answer 34

It must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 6 months from the alleged unfair discrimination incident.

Question 35

What happens after an unfair discrimination dispute is referred to the CCMA?

Answer 35

The CCMA first attempts conciliation, where the parties try to resolve the dispute through mediation.

Question 36

What happens if conciliation at the CCMA is unsuccessful?

Answer 36

The dispute is then referred to the Labour Court, where a judge will adjudicate (formally decide) on the case.

Question 37

In what cases can arbitration be used instead of Labour Court adjudication?

Answer 37

Arbitration can be used in three situations: Sexual harassment cases If the employee earns below the earnings threshold If both parties agree to arbitration instead of court

Question 38

When is an employer liable for an employee’s contravention of the Employment Equity Act (EEA)?

Answer 38

If an employee violates the EEA, the employer must be informed immediately. The employer must consult with relevant parties and take action to eliminate the conduct. If the employer fails to rectify the issue, and the employee is proven guilty, the employer also becomes responsible

Question 39

What conditions must be met for an employer to be held liable for sexual harassment committed by an employee?

Answer 39

An employer is liable if: The employee was sexually harassed. The victim immediately informed the employer. The employer failed to take corrective action.

Question 40

How can an employer avoid being held liable for an employee’s misconduct?

Answer 40

The employer must prove that: It took necessary steps to eliminate the misconduct. It did everything reasonably practicable to prevent the employee from violating the EEA. Having a sexual harassment policy shows efforts to prevent such misconduct.