The obligation on employers to effect affirmative action measures
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
Inherent requirements of a job as a defence to unfair discrimination
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
Unfair discrimination and affirmative action in the South African Police Service
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
The unfair labour practice relating to benefits
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
- Authors: Tshiki, Pakamisa Washington
- Date: 2005
- Subjects: Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10189 , http://hdl.handle.net/10948/386 , Employee fringe benefits -- Law and legislation -- South Africa , Unfair labour practices -- South Africa , Discrimination in employment -- South Africa
- Description: At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
- Full Text:
- Date Issued: 2005
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