Units 5 - 7 Flashcards
(20 cards)
Discuss the CCMA
- An independent, juristic body that helps resolve disputes and offers advise and training on labour relations
- Governing body consists of Director and 10 members (appointed by Minister and NEDLAC)
How does the Employment Equity Act correct the demographic imbalance in the nation’s workforce?
- Prohibiting unfair discrimination
2. Imposing affirmative action
Which legislative provision of the Constitution prohibits unfair discrimination?
Section 9
Which provision of the EEA prohibits unfair discrimination?
Section 6(1) - prohibits unfair discrimination, direct/indirectly on a number of grounds. - Harassment of e/es is also expressly included as a listed ground of discrimination.
What are the listed grounds in section 6(1)?
No person may unfairly discriminate, either 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 any other arbitrary ground.
What do employment policy and practices include?
- Recruitment procedures
- Advertising
- Selection criteria
- Appointment process
- Job classification/grading
- Remuneration
- Employment benefits
- Terms and conditions
- Training
- Disciplinary measures
- Demotions
- Dismissals
What is discrimination?
- Different treatment of different people - a form of differentiation.
- An intention to discriminate need not be present - the impact of the discrimination is decisive.
- The discrimination must impact on the dignity of the individual, who must be a member of a group deemed worthy of protection
- Discrimination also takes place when people are denied privileges/rights accorded to others or singled out for prejudicial treatment on some unacceptable ground
- Disadvantages only becomes unfair if there is no objective justification for distinguishing the allocation of benefits
What is direct discrimination?
- A prejudicial act towards an e/e on the basis of some invidious criterion (especially those listed in sec 6)
- The form of discrimination would appear on the face of it to be discrimination
- Direct discrimination is intentional
What is indirect discrimination?
- The differentiation on the fact of it which may be innocent but the impact thereof could be discriminatory - objective or neutral barriers, which excludes members from a particular group/class.
What is the common denominator of the specified grounds of discrimination?
They have been used in the past to categorise, marginalise and oppress people and have the potential to demean persons in their inherent humanity and dignity
What are the 3 defences against discrimination claims?
- To prove that no unfair discrimination took place
- To prove that unfair discrimination took place by an e/e and that the e/r did everything reasonable to prevent it
- To prove that the discrimination was not unfair
What does ‘inherent requirements of the job’ mean?
That a requirement must be necessary for effectively carrying out the duties.
- The e/r must prove that the person was indeed incapable of performing the job
What is sexual / sex-based harassment?
- Discrimination based on a person’s sexuality (i.e. sex or gender)
- The emphasis is on sexual nature of the conduct - not on the sex of the victim or perpetrator as a biological construction
- Sex based harassment does not include the aspects of sexuality: these are adverse/damaging language or conduct generally made in the presence of others the workplace because of their sex
Which section of the EEA applies to harassment?
Section 6(3)
What forms of sexual harassment are there?
- May include unwelcome physical, verbal or non-verbal conduct
- Physical conduct pf a sexual nature
- Unwelcome innuendos, suggestions and hints, sexual advances ,etc.
- Unwelcome gestures, indecent exposure
- Quid pro quo harassment - Sexual favouratism
Which should be applied in the workplace to regulate sexual harassment cases?
The Code of Good Practice in the Handling of Sexual Harassment Cases
- The Code applies to everyone at the workplace
What guidelines does the Code give?
- Everyone is required to refrain from committing acts constituting sexual harassment
- The employers’ management must ensure that their conduct does not cause an offence and hey should discourage unacceptable behaviour on their part
- The e/r should ensure that anyone who has dealings with the e/r is not subjected to sexual harassment
- Appropriate steps should be taken in accordance with the code when sexual harassment occurs or is brought to the attention of the employer
Which steps must be taken?
- The e/r must issue a policy statement
- The e/r must develop clear procedures for handling harassment cases
- Confidentiality must be maintained in dealing with grievances pertaining to sexual harassment
- Where the e/e’s sick leave is exhausted, consideration of additional sick leave should be given
Discuss dispute resolution
- Must be referred to the CCMA for conciliation within 6 months
- If not settled, it may be referred for arbitration IF both parties consent, or if e/e earns below the threshold
- Otherwise must be referred for adjudication to LC
Briefly discuss the EE Plan
- Must be aimed at achieving reasonable progress towards employment equity
- Objectives of the plan
- Affirmative action measures to be implemented
- Numerical goals to achieve equitable representation of suitably qualified people from designated groups
- Duration of the plan
- Monitoring, enforcement and dispute resolution of the plan
