Labour Law unit 4

Section 9 Constitutional Equality

• Equal before the law - s9 (1)

• Enjoyment of full rights - s9 (2)

• Limitations

Grounds in section 9 (3)

• Race, gender, martial status, sexual orientation, pregnancy, colour, age, disability, religion, conscience, belief, culture, language and birth

PEPUDA

Any act, policy or practices that directly or indirectly discriminates against a person on one or more of the prohibited grounds

Formal equality

Treating everyone the same

Substantive equality

Framework for implementation of remedial measures, affirmative action

Equality law institutions and enforcement

mechanisms

South African Human Rights Commission = protecting fundamental rights

Commission for the Promotion and Protection of the rights of cultural, religious and linguistic communities = promotes respect and unity

Commission for gender equality = equality for genders

Section 9 (2) (c) of EEA

• Affirmative action clause

• Promote equality through legislation

• Help disadvantaged

Section 9 (3) and (4) (c) of EEA

(3) = state shouldn’t discriminate directly or indirectly on the grounds - national legislation should prevent or prohibit unfair discrimination

(4) = no person should discriminate directly or indirectly on someone based on the grounds

Scope and application of the EEA

• Applies to SASS, members of SANDF & National Intelligence Agency

• Chpt 2 = unfair discrimination

• Chpt 3 = affirmative action

Purpose of EEA

• Promote equality

• Redress disadvantages experienced by designated groups

Designated Employer

• Employees 50 or more employees,

• Less than 50 but annual turnover specified in schedule 4 of EEA

• A municipality,

• Organ of state and

• Bound by collective agreement

Designated Employee (S1 of EEA)

• Black people (Africans, Coloureds, Chinese, Indians), women and people with disabilities

• Citizens by birth or descent or became citizens of SA

Harmse v City of Cape Town

• Applicant applied for 1 of 3 posts at the municipality and was unsuccessful, he claimed that the municipality failed to apply the provisions of the EEA.

• Harmse relied on a combination of the protection against discrimination afforded by sec 6 of the EEA and a right to be preferred, which he claimed arose from the Municipality’s obligations as a designated employer to promote EEs and accordingly himself as a designated employee.

• Court agreed the employer fell short of promoting affirmative action

Dudley v City of Cape Town

• Dr Dudley wanted same advantage that whites get

• Designated employees cannot rely on a right to be preferred as individuals

• To succeed with an action for unfair discrimination based on race, complainants must shows that the decision of which they complain was motivated by race

Employee

Any person other than an IC who works for another person or state and is entitled to receive remuneration and assists with conducting the business of the employer

Harksen v Lane

Test for unfair discrimination

1) Is there differentiation? This is where people from different groups are treated differently

2) Does the differentiation equal discrimination? Differentiation (fair or unfair)

3) Differentiation based on a listed ground in S9 of con and occurs when a person is treated differently because they belong to a particular

4) Differentiation based on an unlisted ground is where seemingly neutral criteria is used that operates to the systematic disadvantage for a particular category of persons

5) The employer bears onus to prove that it is not unfair based on either: a) an inherent requirement of the job that cannot be reasonably accommodated or other relevant case law or b) in terms of affirmative action measures

Exposition of affirmative action measures

• S15 of EEA

• Identify and eliminate employment barriers

• Further diversity

• Make reasonable accomodation for people