Transcript Slide 1
CURRENT LABOUR LAW 2009 HALTON CHEADLE EMPLOYMENT DISCRIMINATION HALTON CHEADLE PROHIBITION OF UNFAIR DISCRIMINATION Section 187(1)(f) “A dismissal is automatically unfair if – … the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.” PROHIBITION OF UNFAIR DISCRIMINATION (Cont …) Section 187(2) “(a) A dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job. (b) A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.” PROHIBITION OF UNFAIR DISCRIMINATION Section 6(1) of the EEA (1) 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 and birth. PROHIBITION OF UNFAIR DISCRIMINATION Section 6(3) of the EEA (3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1). GROUNDS • Belief - Opinion on extra-marital affairs. Zabala v Gold Reef City Casino - Conscience and professional ethics. Naude v MEC, Department of Health GROUNDS (Cont …) • Mental Illness - Unspecified ground. - Test: an attribute or characteristic that has the potential to impair fundamental dignity. - Discrimination on the grounds of mental illness impairs fundamental dignity. Marsland v New Way Motor & Diesel Engineering GROUNDS (Cont …) • Nationality or ethnic origin Chinunza v MTN • Pregnancy Vorster v Rednave Enterprises • Race Mutale v Lorcom Twenty Two CC GROUNDS (Cont …) • Sexual Harassment - Jokes are not a defence if the jokes are not welcome. - Harassment by a union shop steward is an aggravating circumstance. - A negative inference is not to be drawn if there is a delay in making a complaint. NUMSA obo Africa and Market Toyota GROUNDS (Cont …) • Sexual Orientation - Right to religious freedom. • Church’s religious doctrine regards homosexuality as a sin; • Church leaders had to conform to the doctrine. GROUNDS (Cont …) • Sexual Orientation - Court held that a church could discriminate against a priest or a teacher with substantial religious responsibilities. - Music teacher not such a person. Strydom v Nederduitse Gereformeerde Gemeente WAGE DISCRIMINATION “Equal pay for Equal Work” OR “Equal pay for work of equal value” Mangena & Others v Fila South Africa WAGE DISCRIMINATION (Cont …) • Section 6 of the EEA prohibits unfair discrimination but does not explicitly set the standard for equivalence. • EEA must be interpreted in accordance with the ratified ILO Equal Remuneration Convention 1951 to give effect to the principle of equal pay for work of equal value in respect of men and women. • No reason why that principle should not be applied in respect of the other listed and analogous grounds. AFFIRMATIVE ACTION • SCA reaffirmed in Gordon v Department of Health: - that decades of systematic discrimination cannot be eliminated without positive action; - Constitution requires the public service to be broadly representative; AFFIRMATIVE ACTION (Cont …) - this would be impossible without a programme of affirmative action; - affirmative action must be designed to achieve protection and advancement. AFFIRMATIVE ACTION (Cont …) • Ad hoc affirmative action to solely achieve representativeness is not permitted. • Efficiency and fairness are not to be compromised in pursuit of representativeness. Gordon v Department of Health BURDEN OF PROOF • If the employee produces sufficient evidence of unfair discrimination, employer to prove to the contrary. • If the employer proves other reasons, discriminatory reasons must be the dominant or the most likely reason. • Test applied in Vorster v Rednave Enterprises. LIABILITY FOR COMPENSATION • Employer liable for sexual harassment if made aware of it and fails to take steps to eliminate it. • Employer not liable if employer takes all reasonable and practicable measures to prevent it. LIABILITY FOR COMPENSATION (Cont …) • Court assessed the employer’s response in Potgieter v National Commissioner of SAPS - delay in processing the complaint; - lack of confidentiality; - failure to suspend the perpetrator pending the enquiry; - sanction was too lenient. DG’S REVIEW POWERS • Section 43 of the EEA permits the DG to conduct a review to determine compliance. • DG must take into account various factors including the extent to which suitably qualified people from the designated groups are equitably represented taking into account- demographic profiles; - pool of suitably qualified people; - other economic and financial factors. DG’S REVIEW POWERS (Cont …) • The review may result in approval of the employment equity plan or recommendations on steps to be taken to comply. • If the employer fails to comply, the DG may refer the failure to the Labour Court for determination. • DG referred non-compliance with the recommendations to the Labour Court for determination. DG’S REVIEW POWERS (Cont …) • Employer launched a counter application to review the DG’s recommendations and the decision to refer non-compliance to the Labour Court. • Court held that it was not evident that the DG had taken the section 43 factors into account and accordingly set the recommendations aside.