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.
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- 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.
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- Date Issued: 2015
Investigating the implementation of the employment equity plan at Amatola Water Board in the province of the Eastern Cape
- Authors: Gotyi, Zamikhaya Gladwell
- Date: 2012
- Subjects: South Africa -- Amatola Water Board , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:8280 , http://hdl.handle.net/10948/d1016268
- Description: With the advent of democracy in South Africa in the early 1990s, the new government had to introduce major social, economic and political changes in order to undo the damages inflicted by many years of both colonialism and apartheid. These changes included the scrapping of discriminatory legislations and drafting of new laws to regulate employment practices. Amongst the pieces of legislation that the new South African government put in place, the Employment Equity Act, (Act 55 of 1998) was a major turning point in the elimination of discrimination at the workplace and redressing the injustices of the previous regimes. The Act is aimed at regulating the employment practices in an attempt to make the workplace a true reflection of the South African demographics. As a result, the promulgation of the Act had a major impact on the organisations in South Africa and has affected the way they now do business. Although the Act has been in existence for 14 years, progress in the implementation of employment equity and affirmative action in organisations in South Africa has been far less significant, particularly in the representation of women in managerial positions. In South Africa, an overwhelming majority of managerial positions are still occupied by men, with marginal women occupying management positions. Thus, women are still experiencing discrimination and under-representation at the workplace. Noting this trend at Amatola Water Board, the researcher decided to investigate the extent of progress the organisation has achieved in the implementation of its Employment Equity Plan 2009-2014. The objectives of the study were to identify factors that could assist the organisation to effectively implement the Plan, identify the impediments that pose challenges to effective implementation of the Plan in the organisation, and establish the perceptions of employees on the implementation of the Plan in the organisation. To collect data for the study, the researcher used a qualitative research approach. In this regard, the researcher used questionnaires and interviews to collect qualitative data. A sample of fifty employees was selected for the administration of questionnaires and four additional employees were selected for interviews. Both samples were selected by purposive sampling. The study has established that employment equity is still a challenge that South African organisations are struggling to implement. The study has revealed that, at Amatola Water Board, there are indeed various factors that contribute to the low representation of women in managerial positions. These factors include the lack of management support for the implementation of the Employment Equity Plan, recruitment processes that fail to recruit sufficient numbers of qualified applicants, training and development practices that fail to produce the required number of qualified employees, unconducive organisational culture, veiled racial and gender stereotypes, and inadequate communication. Suggestions and recommendations to address these challenges have been espoused.
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- Date Issued: 2012
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.
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- 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.
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- Date Issued: 2009
Feminisation a period of labour market changes in South Africa
- Authors: Lee, Deborah Ellen
- Date: 2005
- Subjects: Women -- Employment -- South Africa , Discrimination in employment -- South Africa , Wages -- Women -- South Africa , Labor supply -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:11008 , http://hdl.handle.net/10948/363 , Women -- Employment -- South Africa , Discrimination in employment -- South Africa , Wages -- Women -- South Africa , Labor supply -- South Africa
- Description: The post-1994 role of women in the South African economy is changing with respect to issues such as education and employment opportunities. In the past, men tended to hold the primary or ‘good’ jobs, which have the greatest stability and promotional potential, whilst women tended to hold the secondary or ‘poor’ jobs, which have lower stability and lower wages (Kelly, 1991). Women’s labour force participation has risen significantly over the years since 1994, but more in depth research is needed in order to determine where and how changes could be implemented to ensure that any past gender inequalities fall away with minimal impact on the economy as a whole. As such, certain dynamics within the labour market need to be considered. Firstly, pre-market types of discrimination, including issues such as gender discrimination during the acquisition of human capital through educational attainment should be considered. In most countries, women enter the labour market with severe disadvantage in that they have been subject to discrimination in schooling opportunities (Standing, Sender & Weeks, 1996). Secondly, the feminisation of the labour force is dealt with, as well as what factors affect the female labour force participation decision (i.e. the decision of whether to participate in the labour market or not). iv Thirdly, employment discrimination is investigated, including the concept of ‘occupational crowding’. An analysis of trends in the occupational structure of economically active women in South Africa shows the typical shift out of agriculture into industrial related jobs (Verhoef, 1996). Lastly, wage discrimination is analysed, in order to determine if women get lower rates of pay for ‘equal work’. The objectives of this study are aimed at determining whether there have been any positive changes with respect to women in any of these focal areas mentioned above. There are studies that have established gender differentials when it comes to formal education, and these place women at the disadvantaged end (Bankole & Eboiyehi, 2000). If one considers the educational measures, namely, the levels of literacy, years of education, and overall educational attainment, employed by this country to determine whether there are in fact observed differences between the education of boys and girls, the following was found: Males rate higher with respect to two of these measures, namely literacy and educational attainment, and are thus able to exhibit lower levels of poverty than females in South Africa. Men exhibit slightly higher literacy rates than women of the same age (Statistics South Africa, 2002), and men also rate higher than women when it comes to university education. With regards to primary and secondary school attainment v since 1994, the gender gap does appear to have disappeared. The ‘neoclassical model of labour-leisure choice’, as applied in this study, shows that as the wage rate increases, women have an incentive to reduce the time they allocate to the household sector and are more likely to enter the labour market. In South Africa, however, the increase in the female participation rate has merely translated into a rise in unemployment and has not been associated with an increase in the demand for female labour. This implies that South African women are being ‘pushed’ into the labour market due to economic need, rather than being ‘pulled’ into the labour market in order to earn a higher wage. Women are gradually becoming better represented at all levels across a wide range of occupations. Women, however, continue to face greater prospects of unemployment and to earn less than their male counterparts even when they do find employment. These lower female wages are partly as a result of ‘occupational crowding’, whereby women are over-represented in certain occupations resulting in excess labour supply which drives down the wage rate. It has been determined that the problem of occupational crowding is a real and immediate one and has been found to depress wages within certain female specific occupations.
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- Date Issued: 2005
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.
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- Date Issued: 2005
An analysis of group adverse impact in selection strategies of a communications company
- Authors: Bradfield, Claire Caroline
- Date: 2004
- Subjects: Telecommunication -- Employees -- Selection and appointment -- South Africa , Employee selection -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:10993 , http://hdl.handle.net/10948/361 , Telecommunication -- Employees -- Selection and appointment -- South Africa , Employee selection -- South Africa , Discrimination in employment -- South Africa
- Description: An overview of the literature indicates that there is a real and pressing need to explore the concept of adverse impact in more detail. The Employment Equity Act of 1998 prioritises the issue of group representivity in staff selection and although there are merits in enforcing an Affirmative Action policy, an objective assessment of the inherent requirements of job applicants is still a constitutional and procedural outcome. There is no simple mechanism that can be used to determine the manifestation of adverse impact. However, evidence thereof can be most useful in securing fairness in selection and employment decisions. There is a distinct need to examine the matter of adverse impact and its implications in the South African context. South Africa is confronted with a labour force that is growing dramatically and changing significantly. The demographic trends in our dynamically changing labour markets are likely to amplify skill and ability differences between the resulting contradictory goals of equal opportunity based on individual merit and equal employment results for subgroups of populations. Three selection strategies of a communications company were used as a basis for the assessment of adverse impact. The total population of the Call Centre selection strategy was 150. Seven instruments and measures were utilised in the study, namely, a job analysis, pre-screening exercise, psychometric ability tests, role-play simulation, structured interview, job compatibility questionnaire and a performance evaluation. The total population of the Operator Services selection strategy was 139. Five psychometric instruments were utilised in the study. The total population of the Female Leadership Development Programme selection strategy was 471. Three psychometric instruments were utilised in the study. The Adverse Impact Model was applied to each of the aforementioned strategies. In terms of the definition, adverse impact exists if the selection ratio associated with a particular passing score on a test for one sub-group of job applicants is less than 4/5th’s or 80% of the selection ration for the largest sub-group of applicants. 13 The results of the study indicate that adverse impact occurred in the following instances. In the Call Centre selection strategy, there was evidence of adverse impact in the racial analysis in the ability testing stage. There was also evidence of adverse impact in the gender analysis during this stage. There was no evidence of adverse impact in either the racial or gender analyses during the interview stage. There was no evidence of adverse impact in the racial analysis during the appointment stage. There was however evidence of adverse impact in the gender analysis during the appointment stage. The Female Leadership Development Programme selection strategy revealed evidence of adverse impact in the racial analysis during the appointment stage. The Operator Services selection strategy revealed an adverse impact in both the racial and gender analyses during the testing stage. The issue of adverse impact is obviously controversial. However, data obtained from this process will provide for informative analysis.
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- Date Issued: 2004
An investigation into the progress made towards achieving employment equity at Calsonic Kansei South Africa (PTY) Limited in terms of the Employment Equity Act no. 55 of 1998
- Authors: Ring, Grant
- Date: 2002
- Subjects: Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Language: English
- Type: Thesis , Masters , MBA
- Identifier: vital:10895 , http://hdl.handle.net/10948/104 , Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Description: The key aspect to stimulating economic and individual growth in the workplace has been shown in numerous case studies to be the removal of discrimination. Affirmative Action looks at dealing with, and making amends for past injustices, as well as moving towards equal employment opportunities in a constructive manner. It is about recognizing that people are inherently different whilst trying to achieve a “colour – blind” society. The Employment Equity Act No. 55 of 1998 was put in place by Government to facilitate the implementation of fair workplace practices, which will correct the imbalances of the past as well as creating a workforce, which reflects the demographics of South Africa. The inequalities in employment patterns and practices with respect to access to employment, training, promotion and equitable remuneration especially for black people, women and people with disabilities are addressed in the said Act. The Employment Equity Act is quite specific about the minimum requirements of an organisation’s Employment Equity Plan, which make it easy to identify what progress is being made towards ending discrimination in the workplace. The minimum penalty for contravening the Employment Equity Act is R500 000 and the maximum is R900 000. The question arises as to whether South African organisations are merely implementing Employment Equity policies to adhere to the basic requirements and deadlines of the Act. Or, are these policies genuinely based on commitment to the principles of equality and equal opportunity for all in the workplace. Calsonic Kansei South Africa has put into place various training and succession plans, which will help to achieve the organizational goal of being more equitable in terms of the Employment Equity Act. Employment agency databases have also been analysed to determine the availability of suitably qualified Affirmative Action employees. In this paper the writer will investigate the progress that Calsonic Kansei South Africa has made towards achieving Employment Equity in relation to other organisations within the same industry.
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- Date Issued: 2002