SECTION D: EEA (15 MARKS)

Question 1

Unfair Discrimination

Answer 1

The Employment Equity Act prohibits unfair discrimination, directly or indirectly in any employment policy or practice on one or more grounds incl. race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, HIV status, religion, conscience, belief, political opinion, culture, language and birth or any other arbitrary grounds.

Harassment (including sexual harassment on any one or a combination of above-mentioned grounds is also considered a form of unfair discrimination.

According to section 6 (4) a difference in terms & conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly / indirectly based on any one or more of the listed grounds, is unfair discrimination. The minister may by way of regulation prescribe the criteria and methodology for assessing “work of equal value”.

Question 2

Unfair Discrimination - Employment policy or practice

Answer 2

is defined in a comprehensive manner that encompasses every aspect of the employment relationship.

The Employment Equity Act states that the term includes inter alia:
- Recruitment procedures, advertising & selection criteria.
- Appointments & the appointment process.
- Job classification & grading.
- Remuneration, employment benefits & terms & conditions of employment.
- Job assignments.
- The working environment & facilities.
- Training & development.
- Performance Evaluation Systems.
- Promotion.
-Transfer.
- Demotion.
- Disciplinary measures other than dismissal
- Dismissal

The list is not exclusive & the Act requires every employer to consider all his/her employment policies and practices very carefully to ensure that there is no unfair discrimination. Every procedure, process, rule or custom forming part of the employment relationship must be scrutinized to eliminate any unfair discrimination.

Question 3

The Employment Equity Act sets out 2 grounds on which discrimination will be permissible:

Answer 3

• Affirmative Action &
• The inherent requirements of a job.

Question 4

Inherent Requirement of a Job

Answer 4

The Labour Court has accepted that in order for something to constitute an inherent requirement of a job it must be a permanent, essential element of the job, or an indispensable attribute of the job that relates in an inescapable way to the performing of the job. Obvious examples would be a requirement that an airline pilot is able to see or that a lecturer is able to communicate adequately in the relevant language of instruction.

Question 5

Unfair Discrimination - Medical Testing

Answer 5

Medical testing of an employee is prohibited unless legislation permits or requires the testing or where it is justifiable to do so in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

Question 6

Unfair Discrimination - Criteria for fair medical testing

Answer 6

• Whether the work involves physical activity.
• Whether the test relates to actual and reasonable requirements of the job.
• Whether applicants have been adequately informed as to the nature and the purpose of the test.

Question 7

Unfair Discrimination - Testing for HIV Status

Answer 7

Only possible if declared to be justifiable by the Labour Court. In authorising such testing, the Labour Court may make any order which it considers appropriate, including the imposition of conditions relating to:
- Counselling
- Maintenance of Confidentiality
- Period for Testing
- Category or Categories of Jobs/employees in respect of which the authorisation applies.

Question 8

Unfair Discrimination - Psychological testing

Answer 8

Is likewise prohibited unless the test has been scientifically shown to be valid & reliable, can be applied fairly to all employees & is not biased against any employees or group. These tests and similar assessments have to be certified by the health professions council of SA or any other body authorized by law to certify the tests or assessments.

Question 9

Burden of Proof (Section 11)

Answer 9

1. If unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom allegation is made must prove, on a balance of probabilities, that such discrimination:
   - Did not take place as alleged.
   - Is rational and not fair or is otherwise justifiable?
2. If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities that
   - The conduct complained of is not rational.
   - The conduct complained of amounts to discrimination.
   - The discrimination is unfair.

Question 10

Disputes

Answer 10

All disputes except disputes about unfair dismissal, must be referred to the CCMA. If the CCMA cannot resolve the dispute through conciliation, any party may refer it to the Labour Court for adjudication or, if all the parties consent, the dispute may be referred for arbitration.

Question 11

2022 Code of Good Practice: Harassment

Answer 11

Sec. 54 of the Employment Equity Act allows Minister of Employment & Labour to issue Codes of Good Practice to advice from the Commision for Employment Equity (CEE) to address matters relating to Employment Equity in South African Workplaces. On 18 March 2022, the Minister repealed the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, and immediately replaced it with the comprehensive 2022 Code of Good Practice on the prevention and elimination of Harassment in the Workplace.

According to the Code, it’s objectives are to eliminate harassment in South African workplaces and any other linked activities by providing guidelines to employers and employees and guidance on policies, procedures and practices governing the aforesaid. By doing so, it effectively also provides steps that employers must take to eliminate harassment so that workplaces exist wherein harassment does not make place and fundamental rights are respected.

In terms thereof, this Code effectively applies to: employers, employees, applicants, volunteers and any other individual that employs another to perform work for them regardless of the formality of the sector or nature of the commercial undertaking of such an employer. The Code also sets out that the following individuals may be perpetrators and victims of harassment, namely: owners, employers, managers, supervisors, employees, job seekers and applicants, trainees (interns, learnerships, apprentices, etc.), volunteers, clients and customers, suppliers, contractors and other that conduct business with an employer.

By widening the scope of perpetrators and victims, the Code places a duty on employers to protect its employees from harassment at work and in work-related situations such as the following: at the workplace, work-adjacent spaces (lunchbreak, breastfeeding, changing, etc.) during work trips and social activities in work related communication technology used for such purposes and internet based platforms), at any work accommodation, during transport controlled / provided by the employer, the residence of employers for domestic and/or health care workers, and the location where employees work from virtually (home/other spaces).

This code is based upon a legal framework that consists of Convention 190 of the ILO (Elimination of violence and harassment in the world of work), and the EEA.

Question 12

The substantive issues dealt with by the Code of Good Practice

Answer 12

Includes the definition (discussed in previous section dealing with harassment) and different types of harassment. Examples include:
- Physical Harassment: Attacks, simulated or threatened violence, gestures.
- Verbal Harassment: Bullying, shaming, hostile teasing, insults, constant negative judgement, racist, sexist and/or any LGBTQIA+ phobic language.
- Psychological Harassment: Emothional abuse with serious psychological consequences suffered.
- Other Conduct: Slander, humiliation, withholding information, sabotaging work performance, excluding other employees, persecution, intolerance towards personal circumstances of others, surveillance of without knowledge and with harmful intent, demotion without justification, pressure to engage in illegal activities or to resign.
- Passive-aggressive/covert harassment: Negative gossip, negative joking, sarcasm, condescending eye contact, etc.
- Mobbing: Group tartets one individual at work.
- Online harassment: Mobile phones, smart phones, internet, social media platforms, and email, cyber bullying.
- Sexual Harassment: Victimisation, quid pro quo harassment, sexual favouritism and a hostile work environment (created/permitting).
- Racial Harassment: Abusive Language, racist jokes / cartoons, memes, racially offensive material (written/verbal), racist name calling / negative stereotyping impacting the dignity of another, offensive behaviour via open hostility, exclusion from the workplace (subtle/blatant), and behaviour that is threatening.

Question 13

The Procedural Issues dealt with by the Code include:

Answer 13

• Obligation of an employer to take proactive & remedial steps (such as risk analysis) to prevent & eliminate harassment in the workplace.
• The adoption of a zero-tolerance attitude towards harassment in the workplace.
• The adoption of a harassment policy in the workplace.
• The development of clear procedures in the workplace to deal with harassment in terms of the EEA.
• The importance of maintaining confidentiality when dealing with investigations into harassment in the workplace.
• The provision of additional sick leave in serious harassment matters.
• The provision of information and education regarding harassment in the workplace.