Substantive equality and the challenge to affimative action as justification for unfair discrimination
- Authors: Delport, Petrus Jacobus
- Date: 2017
- Subjects: Discrimination in employment , Affirmative action programs , Equality
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15467 , vital:28256
- Description: South Africa’s history as a nation is replete with examples of inequality and unfair discrimination. The working arena was no exception to the rule. In fact, it was one of the areas where inequality was most prevalent. Discriminatory legislation was promulgated under the Apartheid regime. These laws enforced differential treatment of employees along racial lines. After 1994, the newly democratic South Africa, through the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter referred to as the “Constitution”), regarded all people as equal before the law and entitled to equal benefit and protection under the law. National legislation was subsequently promulgated to give effect to this constitutional objective. The Employment Equity Act 55 of 1998 (hereinafter referred to as the “EEA”), specifically, gave effect to all employees’ constitutional right to equality in the workplace. Under the EEA, unfair discrimination was forbidden. The EEA also required employers to implement measures to eradicate the injustices of the past. Subsequent to the enactment of the EEA, the Courts reiterated two tests to determine whether unfair discrimination had taken place in the workplace. It also tested whether an affirmative action measure could justify such unfair discrimination. These two tests, referred to in Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12 (11) BCLR 1489 (CC) (Hereinafter referred to as the “Harksen test”) and Minister of Finance v Van Heerden 2004 (11) BCLR 1125 (CC) (Hereinafter referred to as the “Van Heerden test”), were unfortunately applied by the Courts in an inconsistent manner. This created confusion about which test found application in specific circumstances. The Constitutional Court then clarified the confusion through the South African Police Service v Solidarity obo Barnard (2014) ZACC 23 (CC) (Hereinafter referred to as the “Barnard” decision”). It is important to note that this study does not seek to evaluate the correctness of the Barnard decision, nor does it consider the cases prior to the Barnard decision. Rather, this study considers the extent to which the Barnard decision informed later cases dealing with unfair discrimination and affirmative action. In the remaining chapters of this treatise the writer will attempt to answer this question as follows: In chapter two, the legislative framework applicable to issues of unfair discrimination and the application of affirmative action is discussed. Chapter three comprises of a detailed analysis of the Barnard decision. In chapters four and five the writer investigates how the Barnard decision informed four recent cases concerning affirmative action and unfair discrimination in the workplace. These discussions enabled the writer to, in the final chapter; conclude that all four cases were indeed informed by the Barnard decision. The Department of Correctional Services case, however, reiterated the Barnard decision to its fullest extent.
- Full Text:
- Date Issued: 2017
- Authors: Delport, Petrus Jacobus
- Date: 2017
- Subjects: Discrimination in employment , Affirmative action programs , Equality
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/15467 , vital:28256
- Description: South Africa’s history as a nation is replete with examples of inequality and unfair discrimination. The working arena was no exception to the rule. In fact, it was one of the areas where inequality was most prevalent. Discriminatory legislation was promulgated under the Apartheid regime. These laws enforced differential treatment of employees along racial lines. After 1994, the newly democratic South Africa, through the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter referred to as the “Constitution”), regarded all people as equal before the law and entitled to equal benefit and protection under the law. National legislation was subsequently promulgated to give effect to this constitutional objective. The Employment Equity Act 55 of 1998 (hereinafter referred to as the “EEA”), specifically, gave effect to all employees’ constitutional right to equality in the workplace. Under the EEA, unfair discrimination was forbidden. The EEA also required employers to implement measures to eradicate the injustices of the past. Subsequent to the enactment of the EEA, the Courts reiterated two tests to determine whether unfair discrimination had taken place in the workplace. It also tested whether an affirmative action measure could justify such unfair discrimination. These two tests, referred to in Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12 (11) BCLR 1489 (CC) (Hereinafter referred to as the “Harksen test”) and Minister of Finance v Van Heerden 2004 (11) BCLR 1125 (CC) (Hereinafter referred to as the “Van Heerden test”), were unfortunately applied by the Courts in an inconsistent manner. This created confusion about which test found application in specific circumstances. The Constitutional Court then clarified the confusion through the South African Police Service v Solidarity obo Barnard (2014) ZACC 23 (CC) (Hereinafter referred to as the “Barnard” decision”). It is important to note that this study does not seek to evaluate the correctness of the Barnard decision, nor does it consider the cases prior to the Barnard decision. Rather, this study considers the extent to which the Barnard decision informed later cases dealing with unfair discrimination and affirmative action. In the remaining chapters of this treatise the writer will attempt to answer this question as follows: In chapter two, the legislative framework applicable to issues of unfair discrimination and the application of affirmative action is discussed. Chapter three comprises of a detailed analysis of the Barnard decision. In chapters four and five the writer investigates how the Barnard decision informed four recent cases concerning affirmative action and unfair discrimination in the workplace. These discussions enabled the writer to, in the final chapter; conclude that all four cases were indeed informed by the Barnard decision. The Department of Correctional Services case, however, reiterated the Barnard decision to its fullest extent.
- Full Text:
- Date Issued: 2017
Unfair discrimination in recruitment practices
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
- Authors: Brand, Hugo
- Date: 2015
- Subjects: Labor laws and legislation -- South Africa , Employment interviewing , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10260 , http://hdl.handle.net/10948/d1021197
- Description: The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.
- Full Text:
- Date Issued: 2015
Employer liability for sexual harassment in the workplace revisited
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
- Authors: Raubenheimer, Heidi Leasel
- Date: 2014
- Subjects: Sexual harassment , Discrimination in employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10271 , http://hdl.handle.net/10948/d1018607
- Description: Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
- Full Text:
- Date Issued: 2014
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