Unfair discrimination: is dealt with under the Employment Equity Act. Examples of this are – race, gender, ethnic or social origin, colour, sexual orientation, age and disability, etc. Discrimination can be direct or indirect. These disputes go to the Labour Court and the Employment Equity Act applies.
Discrimination occurs when an employer treats a person differently based on physical attributes or other factors such as religion or political belief. The act of differentiation may at times be fair, but it is more commonly found that differentiated treatment is unfair. Discrimination may be fair or unfair. Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.
Unfair discrimination occurs when an employer shows favour, prejudice or bias for or against a person on a prohibited ground, including a person’s 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 or birth, or on any other arbitrary ground.
In some instances, the law allows an employer to apply ‘discrimination’ in its labour practices. An example thereof is that of affirmative action practices, or discrimination based on the inherent requirements of a particular job.
The law sets out four grounds on which discrimination is generally allowed—
- Discrimination based on affirmative action;
- Discrimination based on inherent requirements of a particular job;
- Compulsory discrimination by law; and
- Discrimination based on productivity.
Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups — blacks, women and disabled persons). Affirmative action aims to achieve equality at work without lowering standards and without unduly limiting the prospects of existing employees, for example by getting rid of discrimination in company policies, procedures and practices. Its main aim is generally to ensure that that the previously disadvantaged groups are fairly represented in the workforce of a particular employer.
Harassment of an employee is a form of unfair discrimination. The most common form of harassment reported is sexual harassment, but harassment may also occur on any of the grounds listed in the section above headed “What is Unfair Discrimination”. All such forms of harassment are prohibited.
The Code of Good Practice on Handling Sexual Harassment in the Workplace, 2015 (“the Code”) states that sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account –
- whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
- whether the sexual conduct was unwelcome;
- the nature and extent of the sexual conduct; and
- the impact of the sexual conduct on the employee.
Sexual attention becomes sexual harassment if:
- the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
- the recipient has made it clear that the behaviour is considered offensive; and/or
- the perpetrator should have known that the behaviour is regarded as unacceptable.
Sexual harassment may consist of unwanted physical conduct (e.g. rape, sexual assault), verbal conduct (such as sexual advances, innuendos or comments about a person’s body) and non-verbal conduct (e.g. indecent exposure, explicit e-mails).
A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value amounts to unfair discrimination if it is based (directly or indirectly) on any of the grounds listed under the section headed “What is Unfair Discrimination” above.
“Work of equal value” means the same work, or work that is sufficiently similar, or work that is regarded as being of the same value as that of another employee taking into account the responsibility, the skills or qualifications required, the physical, mental and emotional effort required to perform the work, and the conditions under which the work is performed.
Where work is regarded as being of equal value, there are several factors that may justify a difference in terms and conditions of employment. These include the individuals’ respective seniority or length of service, their respective qualifications, ability, competence or potential, their respective performance, quality or quantity of work (as measured by a consistent performance evaluation system), and a shortage of a particular skill or a difference in market value of the respective jobs. In addition, differentiation will be justified where an employee is demoted without a reduction in pay, and where an individual is employed temporarily in a position for purposes of training or gaining experience.
Where to refer an unfair discrimination dispute
Any employee who feels that he/she has been unfairly discriminated against or that an employer has contravened the laws may lodge a grievance in writing with their employer. The matter may thereafter be referred to the CCMA if the issue cannot be resolved at the workplace.
If the CCMA is not able to resolve the dispute through conciliation, the matter can either be referred to arbitration if the employee earns less than the amount set by the Minister of Employment and Labour in terms of section 6(3) of the Basic Condition of Employment Act (BCEA). If the employee earns above the amount referred to in the BCEA, the matter may be adjudicated by the Labour Court. However, in these circumstances, if both parties agree in writing, the matter be arbitrated by the CCMA.
In sexual harassment matters, the employee has a choice between arbitration at the CCMA and adjudication at the Labour Court regardless of how much he or she earns.
When to refer the unfair discrimination dispute
An employee or job applicant who wishes to lodge an unfair discrimination dispute at the CCMA must do so within six months of the act or omission that allegedly constitutes unfair discrimination.
Should the matter remain unresolved after conciliation, the employee or job applicant has ninety days in which to refer the matter to arbitration or adjudication (see “Where to refer the unfair discrimination dispute” above)
Relevant Resources More
Notice Of Objection To Arbitration By The Same Commissioner
What is unfair labour practice?
Request for Arbitration
Referring A Dispute To the CCMA for Conciliation