Labour Law
LLAW WP NOTES
LEARNING UNIT 4
Discuss the meaning of constitutional equality
Constitutional equality in South Africa focuses on historically disadvantaged groups and aims to
create a level playing field. The Constitution prohibits unfair discrimination, and the EEA specifically
enforces this principle in workplaces. Section 9 of the Constitution guarantees equal treatment
before the law and outlaws discrimination based on various characteristics. It also allows affirmative
action measures to uplift those who have been unfairly disadvantaged in the past. This means that
even though affirmative action might seem discriminatory on the surface, it's a permissible way to
correct historical imbalances.
This section contains important provisions regarding equality in general.
- It states that everyone is equal before the law and has the right to equal protection and
benefit of the law.
- It provides for the prohibition of unfair discrimination (directly or indirectly) against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language, and birth.
- It allows for affirmative action as a measure to protect or advance persons disadvantaged by
unfair discrimination, which means that affirmative action measures would serve as a
justification ground for discrimination.
Explain the way in which the EEA gives effect to the equality clause (Section 9) in the Constitution
The Employment Equity Act (EEA) serves as a means to operationalize the equality clause (section
9) of the Constitution. It establishes the foundation for non-discrimination and affirmative action.
Under the EEA, employers are required to promote equal opportunity by eliminating unfair
discrimination in employment policies and practices, such as recruitment processes or pension fund
rules. Certain entities, like the SANDF and intelligence agencies, are exempt from the EEA's scope.
Section 6 of the EEA mirrors section 9 of the Constitution, prohibiting unfair discrimination on
specific grounds while acknowledging the possibility of other discriminatory grounds not explicitly
listed.
Discuss the objectives of the EEA
The Employment Equity Act (EEA) in South Africa has two primary objectives:
1. Promoting Equal Opportunity and Fair Treatment: The EEA aims to eliminate unfair
discrimination based on factors like race, gender, and disability. It ensures that all employees
are considered for jobs and promotions based on merit rather than background.
2. Implementing Affirmative Action: The EEA seeks to address historical disadvantages faced
by certain groups, such as Black people, women, and people with disabilities, who were
historically marginalized. It encourages positive measures like targeted recruitment and
training programs to ensure fair representation of these groups at all levels of companies.
Learning Unit 4- Employment Equity Act
Labour Law
LLAW WP NOTES
Overall, the EEA endeavours to establish a level playing field in workplaces, providing everyone with a
fair chance to succeed.
Define the following, as provided for in s 1 of the EEA:
a) Designated Employer:
In the Employment Equity Act (EEA), a "designated employer" refers to an employer meeting
specific criteria such as employing 50 or more employees, having a turnover above a specified
threshold, being a municipality or government body, or choosing to be designated voluntarily.
b) Designated Employee (as per Amendments):
While not explicitly defined in Section 1 of the EEA, "designated employee" likely refers to
individuals from historically disadvantaged groups targeted for affirmative action measures.
Specific groups may be defined in amendments to the Act, necessitating consultation with
the latest version or legal guidance.
c) Employee:
The EEA's Section 1 doesn't define "employee." However, according to South African common
law, an employee is typically someone who works under another's control and supervision in
exchange for remuneration. Independent contractors or freelancers may not fall under this
definition.
Explain the scope and application of the EEA in terms of section 4 of the EEA
The scope and application of the Employment Equity Act (EEA) in terms of Section 4 cover all
employers and employees in South Africa, with exceptions for the South African National Defence
Force, the National Intelligence Agency, and the South African Secret Service.
The EEA is structured into chapters with different applications:
• Chapter II (Sections 5–11): Applies to all employers and employees, focusing on eliminating
unfair discrimination in the workplace.
• Chapter III (Sections 12–27): Applies only to designated employers, requiring them to
implement affirmative action measures to ensure fair representation of black people, women,
and individuals with disabilities. Designated employers include:
o Employers with 50 or more employees.
o Employers exceeding certain turnover thresholds.
o Municipalities and organs of state.
o Employers who voluntarily opt-in as designated employers.
The overall goal of the EEA is to promote workplace equity by addressing unfair discrimination and
advancing the employment of historically disadvantaged groups.
Differentiate between direct and indirect discrimination in terms of section 5-6 of the EEA
Under Sections 5 and 6 of the Employment Equity Act (EEA) of South Africa, discrimination in the
workplace is addressed through direct and indirect discrimination:
1. Direct Discrimination
o Occurs when an individual or group is treated less favorably based on prohibited
grounds such as race, gender, disability, religion, or age.
o It is explicit and intentional, e.g., refusing to hire someone due to their ethnicity.
Learning Unit 4- Employment Equity Act
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LLAW WP NOTES
o Section 6(1) of the EEA explicitly prohibits direct discrimination.
2. Indirect Discrimination
o Arises when neutral policies or practices unintentionally disadvantage certain
groups.
o It is often unintentional and systemic, e.g., requiring unnecessary qualifications
that disproportionately exclude certain groups.
o Section 6(1) also prohibits policies or practices with unfair discriminatory effects .
Both direct and indirect discrimination are prohibited under the EEA, ensuring that workplace
fairness is maintained by addressing both intentional and unintentional discriminatory practices.
Terminology regarding equality and discrimination
Formal and substantive equality refer to different approaches in ensuring fairness and addressing
discrimination. Formal equality treats individuals equally in identical situations, while substantive
equality acknowledges differences and aims to achieve fairness by accounting for those differences.
An example illustrates this: In a race for a prize, both X and Y participate. X, who has one leg, would
face discrimination if not allowed to race. Formal equality permits both X and Y to start at the same
line. Substantive equality, however, allows X a head start to compensate for their handicap.
Section 9 of the Constitution prohibits unfair discrimination, supporting formal equality. Yet, it also
allows affirmative action to achieve substantive equality. Similarly, the Employment Equity Act
(EEA) aligns with both formal and substantive equality principles.
Differentiation involves treating people differently for valid reasons, like promoting an employee
based on skills. Discrimination occurs when differentiation is based on unlawful grounds, such as
religion, even without explicit intent to discriminate.
Direct discrimination is evident when someone is treated differently due to a characteristic like
marital status. Indirect discrimination is subtler, arising from seemingly neutral criteria that
disproportionately affect certain groups. For instance, a height requirement for motorcycle delivery
jobs could indirectly discriminate against women, as men are generally taller. However, such criteria
may be justified if essential for the job's function.
Specific discrimination aspects regulated by the EEA
The Employment Equity Act (EEA) addresses various aspects of discrimination in the workplace,
including harassment, testing of employees, and equal pay considerations:
1. Harassment as Discrimination: The EEA considers any form of harassment, such as sexual
harassment or workplace bullying, as unfair discrimination. It prohibits such behaviour and
requires employers to take steps to eliminate it from the workplace. The Act also mandates
the development of sexual harassment policies by employers to address and prevent such
conduct.
2. Testing of Employees in the Workplace: The EEA regulates medical, psychological, and HIV
testing of employees. It prohibits testing unless justified by legislation, medical facts, or the
inherent requirements of a job. For example, medical testing may be required for certain
hazardous jobs, but not for determining pregnancy status.
3. Equal Pay for Equal Work or Work of Equal Value: The EEA ensures equal pay between
employees for the same or substantially similar work, or work of equal value. It prohibits
differentiation in pay based on arbitrary grounds and requires employers to objectively assess
Learning Unit 4- Employment Equity Act
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LLAW WP NOTES
the value of different jobs using criteria such as responsibility, skills, and working conditions.
The Act aims to address gender pay gaps and prevent unfair discrimination in remuneration
practices.
Overall, the EEA aims to create a fair and equitable work environment by prohibiting discriminatory
practices, promoting equal treatment, and ensuring that employees receive fair compensation for
their work.
Justification grounds for discrimination (s 6(2))
The Employment Equity Act (EEA) outlines two grounds for justifying alleged unfair discrimination:
affirmative action and inherent job requirements.
1. Inherent Job Requirements: Discrimination may be justified if a particular attribute is
essential for the performance of a job. However, the EEA does not define "inherent
requirements of the job." Courts interpret this narrowly, considering only requirements that
cannot be removed without fundamentally altering the nature of the job. For example, being
male is not an inherent requirement for a bus driver or firefighter. However, it might be
justifiable for a Roman Catholic school to require teachers to adhere to specific religious
principles.
2. Affirmative Action: Designated employers must implement affirmative action measures to
ensure equal employment opportunities and equitable representation for suitably qualified
individuals from designated groups. Affirmative action must align with the EEA's purpose of
promoting workplace equality and not serve other agendas.
These grounds provide employers with frameworks for justifying actions that may otherwise be
considered discriminatory, ensuring fairness and equality in the workplace while recognizing certain
legitimate considerations.
Give an exposition of the affirmative action measures as prescribed by the EEA
The Employment Equity Act (EEA) outlines affirmative action measures aimed at achieving
employment equity:
1. Designated Employers: Employers meeting certain criteria must implement affirmative action
measures to promote employment equity for designated groups, including larger enterprises,
municipalities, organs of state, and employers designated as such in collective agreements.
Non-designated employers may voluntarily comply.
2. Beneficiaries of Affirmative Action: Designated groups include black individuals (Africans,
Coloureds, and Indians), women, and people with disabilities. Temporary employees working
for a client for over three months are also considered.
3. Degrees of Disadvantage: While not explicitly defined in the EEA, courts consider the
historical context of apartheid when determining degrees of disadvantage. Personal past
disadvantage is not required for affirmative action eligibility.
4. Suitably Qualified Individuals: Only members of designated groups who are suitably qualified
can benefit from affirmative action. Factors determining suitability include formal
qualifications, prior learning, relevant experience, and the capacity to acquire job-related
skills.
5. Contents of Affirmative Action Measures: These measures should aim to identify and
eliminate employment barriers, promote workplace diversity, accommodate designated
groups, ensure their equitable representation, and provide training and skills development
opportunities.
6. Monitoring and Enforcement: The EEA allows employees and trade union representatives to
report contraventions to employers, labour inspectors, or the Commission for Employment
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Equity. Enforcement involves written undertakings, compliance orders, and fines for non-
compliance. Compliance is assessed based on factors such as the demographic profile of the
workforce and progress in eliminating employment barriers.
7. Dispute Resolution: Discrimination disputes are first referred for conciliation by the CCMA,
and if unresolved, to the Labour Court (LC) for adjudication. Disputes about the
interpretation and application of the EEA fall under the LC's jurisdiction. Dismissal disputes
involving discrimination are treated as automatically unfair dismissals and are referred to
the LC under the Labour Relations Act (LRA).
Explain the meaning of “affirmative action” as provided for in the EEA
Under the Employment Equity Act (EEA) of South Africa, affirmative action refers to measures aimed
at promoting workplace equity by ensuring equal opportunities and fair treatment for historically
marginalized groups—namely black people, women, and people with disabilities (designated groups).
The key objectives of affirmative action under the EEA include:
• Representation: Ensuring equitable representation of designated groups across all
occupational levels and job categories.
• Eliminating Barriers: Identifying and removing obstacles that hinder equal employment
opportunities.
• Fair Practices: Implementing policies and procedures that promote diversity and fairness in
the workplace.
• Skills Development: Providing training, mentoring, and advancement programs to support
the career growth of designated groups.
These affirmative action measures are not discriminatory; rather, they serve to redress historical
imbalances and foster a more inclusive and representative workforce.
Explain the duties of a designated employer
Under the Employment Equity Act (EEA) in South Africa, a designated employer has specific duties to
promote workplace equity and eliminate discrimination. These responsibilities aim to redress
historical imbalances and ensure fair representation of historically disadvantaged groups.
Key Duties of a Designated Employer:
1. Conducting an Analysis:
o Assess employment policies, practices, and workforce demographics to identify
barriers to employment equity.
2. Developing an Employment Equity Plan:
o Create a structured plan that includes:
▪ Affirmative action measures to remove barriers.
▪ Goals and timelines for achieving workplace equity.
▪ Monitoring and evaluation strategies.
3. Implementing Affirmative Action Measures:
o Address underrepresentation of black people, women, and persons with disabilities.
Learning Unit 4- Employment Equity Act
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LLAW WP NOTES
o Provide training and development opportunities to promote career advancement.
4. Consultation:
o Engage with employees or their representatives to ensure their input in employment
equity planning and implementation.
5. Reporting:
o Submit regular progress reports to the Department of Employment and Labour on
employment equity efforts.
6. Retaining Records:
o Maintain records of the employment equity plan, reports, and relevant
documentation for compliance inspections.
7. Compliance with the EEA:
o Ensure full compliance with the Act, including preventing unfair discrimination in all
employment practices.
These duties help create a more inclusive and representative workforce while ensuring adherence to
employment equity legislation.
4o
Under the Employment Equity Act (EEA) in South Africa, a designated employer has specific duties to
promote workplace equity and eliminate discrimination. These responsibilities aim to redress
historical imbalances and ensure fair representation of historically disadvantaged groups.
Key Duties of a Designated Employer:
1. Conducting an Analysis:
o Assess employment policies, practices, and workforce demographics to identify
barriers to employment equity.
2. Developing an Employment Equity Plan:
o Create a structured plan that includes:
▪ Affirmative action measures to remove barriers.
▪ Goals and timelines for achieving workplace equity.
▪ Monitoring and evaluation strategies.
3. Implementing Affirmative Action Measures:
o Address underrepresentation of black people, women, and persons with disabilities.
o Provide training and development opportunities to promote career advancement.
4. Consultation:
o Engage with employees or their representatives to ensure their input in employment
equity planning and implementation.
5. Reporting:
Learning Unit 4- Employment Equity Act
Labour Law
LLAW WP NOTES
o Submit regular progress reports to the Department of Employment and Labour on
employment equity efforts.
6. Retaining Records:
o Maintain records of the employment equity plan, reports, and relevant
documentation for compliance inspections.
7. Compliance with the EEA:
o Ensure full compliance with the Act, including preventing unfair discrimination in all
employment practices.
These duties help create a more inclusive and representative workforce while ensuring adherence to
employment equity legislation.
Explain the preparation and implementation of an employment equity plan
The Employment Equity Plan (EEP) is a structured approach under the Employment Equity Act (EEA)
aimed at eliminating workplace inequities and promoting diversity. A designated employer must follow
a systematic process to prepare and implement the plan effectively.
Preparation of an Employment Equity Plan
1. Consultation with Employees:
o Engage with employees or their representatives to discuss workplace demographics
and equity-related barriers.
o Gather input on measures to promote fairness and inclusion.
2. Analysis of Employment Policies and Workforce:
o Conduct a workforce analysis to assess the representation of black people, women,
and persons with disabilities at different job levels.
o Review existing policies, practices, and procedures to identify and eliminate barriers
to equity, such as biased recruitment or promotion practices.
3. Setting Objectives and Goals:
o Define realistic and measurable goals for achieving employment equity within specific
timeframes.
o Address underrepresentation by setting numerical targets for designated groups.
4. Drafting the Employment Equity Plan:
o The plan must include:
▪ Numerical goals and timeframes for achieving equity.
▪ Strategies for removing workplace barriers.
▪ Affirmative action measures, such as training, mentoring, and reasonable
accommodation for employees with disabilities.
▪ Monitoring and evaluation mechanisms to track progress.
Implementation of an Employment Equity Plan
Learning Unit 4- Employment Equity Act
Labour Law
LLAW WP NOTES
1. Communication and Awareness:
o Inform all employees about the plan to foster understanding and support.
o Provide regular updates on progress and necessary adjustments to maintain
transparency.
2. Execution of Affirmative Action Measures:
o Adjust recruitment policies to attract and retain designated groups.
o Offer training and mentorship programs to promote career advancement for
underrepresented employees.
o Implement support systems, such as mentorship and leadership development
programs.
3. Monitoring and Reporting:
o Regularly compare actual outcomes with numerical targets to assess progress.
o Address challenges or delays in implementation.
o Submit annual Employment Equity Reports to the Department of Employment and
Labour.
4. Ongoing Review and Adjustment:
o Continuously review and refine the plan based on organizational needs and workforce
changes.
o Incorporate employee feedback to improve implementation strategies.
By following this structured approach, an Employment Equity Plan becomes an effective tool for
fostering a fair, diverse, and inclusive workplace.
Apply the test for unfair discrimination contained in section 6 of the EEA as set out by the
Constitutional Court in Harksen v Lane NO 1997 (11) BCLR 1489 (CC) to a set of facts.
The test for unfair discrimination, as established in Harksen v Lane NO, is applied to cases under the
Employment Equity Act (EEA) to determine whether discrimination has occurred. Section 11 of the
EEA specifies the onus provisions for discrimination cases based on listed and unlisted/arbitrary
grounds.
For discrimination based on listed grounds, such as race or gender, the onus is heavier on the
employer. In cases where racial insults were made in the workplace, the court found that the dismissal
of an employee for insubordination after making false accusations of racism was fair. Similarly, in a
case where male prison officers were dismissed for refusing to cut their dreadlocks, the court ruled the
dismissal unfair because there was no similar requirement for female officers, and no evidence
supported the security risk argument.
Discrimination cases based on unlisted/arbitrary grounds focus on whether the dignity of a person has
been affected. In a case where a barman was offended by derogatory remarks about his cleanliness, the
court ruled in his favour, stating that such discrimination impaired his dignity. Conversely, when an
employee made a derogatory comment about a colleague with one eye, but later apologized and was
disciplined, the court found no unfair discrimination as the necessary steps were taken by the
employer to address the issue.
Learning Unit 4- Employment Equity Act
Labour Law
LLAW WP NOTES
In summary, discrimination cases under the EEA are evaluated based on whether the alleged
discrimination occurred on listed or unlisted/arbitrary grounds and whether the dignity of the
individual was affected. The burden of proof varies depending on the nature of the discrimination.
Learning Unit 4- Employment Equity Act
