Study Unit 5 Flashcards
What is differentiation and unfair discrimination?
Differentiation is different treatment based on legitimate reasons and discrimination is differential treatment based on an illegitimate reason
Is intention necessary to establish discrimination?
No
Equality
What is formal equality?
S9(3) and S9(4) of the Constitution
FE-Requires everyone be treated the same irrespective of circumstances
Equality
What is substantive Equality?
S9(2) of the Constitution
SE-Recognises need to treat groups diffently to achieve equality.Affirmative action is required to correct imbalances between groups
What is the Purpose of the EEA according to S2 of the EEA?
- elimination of unfair discrimination
- implementation of affirmative action
What does CH2 of the EEA prohibit?
prohibition of unfair discrimination -
applies to all employees and job applicants
What does CH3 of the EEA require?
implementation of affirmative action –
applies only to designated employers and employees
Who is excluded from the application of the EEA according to CH4?
-Defence Force
-National Intelligence Agency
-South African Secret Service
-Directors of COMSEC
What does S5 and S6 of the EEA provide for?
S5 provides for the elimination of unfair discrimination and s6 provides for the prohibition of unfair discrimination
What is discrimination according to S6(1) of the EEA?
unfair discrimination based on the 19 specified grounds listed in S6(1)
What are unspecified grounds of discrimination?
Grounds that are similar to the specified grounds but they are grounds that impairs one’s human
dignity
What are arbitrary grounds according to the Ramaila case?
Arbitrary grounds are unspecified grounds
What happens if an arbitrary ground is an unspecified ground?
The employee would have to bring a claim that shows that the discrimination impairs their dignity
What is direct discrimination?
when someone is treated differently
because of a certain characteristic
Direct Discrimination case law
What did the Swart v Mr Video case state regarding direct discrimination?
Employer refused to hire people older than 25 years
The actions of the employer in the hiring process constitute unfair discrimination based on age
What is indirect discrimination?
when criteria that appears to be
neutral, negatively affects a certain
group disproportionately
Indirect Discrimination Case Law
what did the Leonard Dingler case state regarding indirect discrimination?
Employee benefit funds were different between white and black employees
The court held taht indirect discrimination had occurred based on race
What is employment policy or practice?
-Recruitment
procedures and
appointments
-Job
classification
and grading
-Remuneration,
employment
benefits, terms
and condition
-Training and
development
-Disciplinary
measures
other than
dismissal
-Dismissal
-Job
assignments
How is sexual harassment regulated in terms of the EEA?
A single incident of sexual conduct constitutes sexual harassment
How does S6(3) of the EEA deal with a claim of harassment?
A harassment claim in terms of s6(3) must be linked to a ground in s6(1)
Unfair Dircrimination Claim steps
what steps must be followed to lodge an unfair discrimination claim?
S10 of EEA
1.Refer to CCMA within 6 months
2.Conciliation by CCMA
3.If unresolved after conciliation, refer to LC for
adjudication
4.Can be referred for arbitration instead of adjudication where parties consent OR CCMA arbitration if: sexual harassment or earns below the threshold(have a right of appeal to LC)
Establishing unfair discrimination
What is Method 1 of establishing unfair discrimination?
METHOD 1
A UD claim is brought forward
1. UD claim must be linked to s6(1) grounds
2. Is differentiation UD?
3. If it is ,UD based on S6(1) grounds then the Harken v Lane test applies= Discrimination is established and unfair discrimination is preseumed;S11 of EEA onus shifts to employer to show UD is justified on a BoP
Establishing Unfair Discrimination
What is Method 2 of establishing unfair discrimination?
METHOD 2
A UD claim is brought forward
1. If discrimination is on an unspecified ground the S11 BoP shifts to employee to show there was discrimination
2. By proving it impaired their dignity
3. Discrimination is not established and UD is not presumed
4. In terms of Harken v Lane and S11
Defences to an Unfair Discrimination Claim
What are the 2 defences to a claim of unfair discrimination?
S6(2) of EEA
1.Affirmative Action measures.(Kaylee v Barnard)
2.Inherent requirements of a job(Damons Case)
Damons Injured Firefighter
Kaylee v Barnard-SAPS overrep of white women
What is an employers liability for the conduct of an employee according to Sec 10 of the EEA?
If the employer fails to rectify an employees action and the fellow
employee did transgress – the employer also deemed to
be responsible
What is a designated employer?
-employer who employs 50+ employees
-employer who employees 50> employees but turnover exceeds threshold amount
-Municipality
-Organ of state excluding Defence force, intelligence agency and secret service
-Employer appointed a designated employer by collective agreement
Who forms part of a designated group?
Affirmative action must favour DGs (black people, disabled people)
Black-chinese,coloured,african
What is the definition of citizenship?
-Black people, women and disabled people who are RSA citizens by birth/descent or who became citizens by naturalisation before 27 Apr 1994 or after 26 Apr 1994 and who would’ve been to acquire citizenship by naturalisation but were prevented from doing so due to apartheid
Affirmative Action
Can affirmative action be used as a cause of action?
Harmse v City of Cape Town
Yes
What did the Kaylee v Barnard Case establish?
Barnard Principle- that an employer may refuse appointment or promotion of an employee where the specific level they applied for was already overrepresented.
What did the Damons v City of Cape Town case establish?
if an appointment or promotion was denied due to the inability of the employee to perform the inherent requirements of a job, then the refusal for appointment was justified.
What did the Reynhardt v UNISA case establish?
when employment targets have been met the most suitable candidate should be appointed and affirmative action principles do not apply
