Inherent requirements of a job as a defence to unfair discrimination
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
- Authors: Le Roux, André
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Affirmative action programs -- South Africa , Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8757 , vital:26427
- Description: Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.
- Full Text:
- Date Issued: 2015
Investigating the implementation of the employment equity plan at Amatola Water Board in the province of the Eastern Cape
- Authors: Gotyi, Zamikhaya Gladwell
- Date: 2012
- Subjects: South Africa -- Amatola Water Board , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:8280 , http://hdl.handle.net/10948/d1016268
- Description: With the advent of democracy in South Africa in the early 1990s, the new government had to introduce major social, economic and political changes in order to undo the damages inflicted by many years of both colonialism and apartheid. These changes included the scrapping of discriminatory legislations and drafting of new laws to regulate employment practices. Amongst the pieces of legislation that the new South African government put in place, the Employment Equity Act, (Act 55 of 1998) was a major turning point in the elimination of discrimination at the workplace and redressing the injustices of the previous regimes. The Act is aimed at regulating the employment practices in an attempt to make the workplace a true reflection of the South African demographics. As a result, the promulgation of the Act had a major impact on the organisations in South Africa and has affected the way they now do business. Although the Act has been in existence for 14 years, progress in the implementation of employment equity and affirmative action in organisations in South Africa has been far less significant, particularly in the representation of women in managerial positions. In South Africa, an overwhelming majority of managerial positions are still occupied by men, with marginal women occupying management positions. Thus, women are still experiencing discrimination and under-representation at the workplace. Noting this trend at Amatola Water Board, the researcher decided to investigate the extent of progress the organisation has achieved in the implementation of its Employment Equity Plan 2009-2014. The objectives of the study were to identify factors that could assist the organisation to effectively implement the Plan, identify the impediments that pose challenges to effective implementation of the Plan in the organisation, and establish the perceptions of employees on the implementation of the Plan in the organisation. To collect data for the study, the researcher used a qualitative research approach. In this regard, the researcher used questionnaires and interviews to collect qualitative data. A sample of fifty employees was selected for the administration of questionnaires and four additional employees were selected for interviews. Both samples were selected by purposive sampling. The study has established that employment equity is still a challenge that South African organisations are struggling to implement. The study has revealed that, at Amatola Water Board, there are indeed various factors that contribute to the low representation of women in managerial positions. These factors include the lack of management support for the implementation of the Employment Equity Plan, recruitment processes that fail to recruit sufficient numbers of qualified applicants, training and development practices that fail to produce the required number of qualified employees, unconducive organisational culture, veiled racial and gender stereotypes, and inadequate communication. Suggestions and recommendations to address these challenges have been espoused.
- Full Text:
- Date Issued: 2012
- Authors: Gotyi, Zamikhaya Gladwell
- Date: 2012
- Subjects: South Africa -- Amatola Water Board , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:8280 , http://hdl.handle.net/10948/d1016268
- Description: With the advent of democracy in South Africa in the early 1990s, the new government had to introduce major social, economic and political changes in order to undo the damages inflicted by many years of both colonialism and apartheid. These changes included the scrapping of discriminatory legislations and drafting of new laws to regulate employment practices. Amongst the pieces of legislation that the new South African government put in place, the Employment Equity Act, (Act 55 of 1998) was a major turning point in the elimination of discrimination at the workplace and redressing the injustices of the previous regimes. The Act is aimed at regulating the employment practices in an attempt to make the workplace a true reflection of the South African demographics. As a result, the promulgation of the Act had a major impact on the organisations in South Africa and has affected the way they now do business. Although the Act has been in existence for 14 years, progress in the implementation of employment equity and affirmative action in organisations in South Africa has been far less significant, particularly in the representation of women in managerial positions. In South Africa, an overwhelming majority of managerial positions are still occupied by men, with marginal women occupying management positions. Thus, women are still experiencing discrimination and under-representation at the workplace. Noting this trend at Amatola Water Board, the researcher decided to investigate the extent of progress the organisation has achieved in the implementation of its Employment Equity Plan 2009-2014. The objectives of the study were to identify factors that could assist the organisation to effectively implement the Plan, identify the impediments that pose challenges to effective implementation of the Plan in the organisation, and establish the perceptions of employees on the implementation of the Plan in the organisation. To collect data for the study, the researcher used a qualitative research approach. In this regard, the researcher used questionnaires and interviews to collect qualitative data. A sample of fifty employees was selected for the administration of questionnaires and four additional employees were selected for interviews. Both samples were selected by purposive sampling. The study has established that employment equity is still a challenge that South African organisations are struggling to implement. The study has revealed that, at Amatola Water Board, there are indeed various factors that contribute to the low representation of women in managerial positions. These factors include the lack of management support for the implementation of the Employment Equity Plan, recruitment processes that fail to recruit sufficient numbers of qualified applicants, training and development practices that fail to produce the required number of qualified employees, unconducive organisational culture, veiled racial and gender stereotypes, and inadequate communication. Suggestions and recommendations to address these challenges have been espoused.
- Full Text:
- Date Issued: 2012
Unfair discrimination and affirmative action in the South African Police Service
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
An investigation into the progress made towards achieving employment equity at Calsonic Kansei South Africa (PTY) Limited in terms of the Employment Equity Act no. 55 of 1998
- Authors: Ring, Grant
- Date: 2002
- Subjects: Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Language: English
- Type: Thesis , Masters , MBA
- Identifier: vital:10895 , http://hdl.handle.net/10948/104 , Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Description: The key aspect to stimulating economic and individual growth in the workplace has been shown in numerous case studies to be the removal of discrimination. Affirmative Action looks at dealing with, and making amends for past injustices, as well as moving towards equal employment opportunities in a constructive manner. It is about recognizing that people are inherently different whilst trying to achieve a “colour – blind” society. The Employment Equity Act No. 55 of 1998 was put in place by Government to facilitate the implementation of fair workplace practices, which will correct the imbalances of the past as well as creating a workforce, which reflects the demographics of South Africa. The inequalities in employment patterns and practices with respect to access to employment, training, promotion and equitable remuneration especially for black people, women and people with disabilities are addressed in the said Act. The Employment Equity Act is quite specific about the minimum requirements of an organisation’s Employment Equity Plan, which make it easy to identify what progress is being made towards ending discrimination in the workplace. The minimum penalty for contravening the Employment Equity Act is R500 000 and the maximum is R900 000. The question arises as to whether South African organisations are merely implementing Employment Equity policies to adhere to the basic requirements and deadlines of the Act. Or, are these policies genuinely based on commitment to the principles of equality and equal opportunity for all in the workplace. Calsonic Kansei South Africa has put into place various training and succession plans, which will help to achieve the organizational goal of being more equitable in terms of the Employment Equity Act. Employment agency databases have also been analysed to determine the availability of suitably qualified Affirmative Action employees. In this paper the writer will investigate the progress that Calsonic Kansei South Africa has made towards achieving Employment Equity in relation to other organisations within the same industry.
- Full Text:
- Date Issued: 2002
- Authors: Ring, Grant
- Date: 2002
- Subjects: Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Language: English
- Type: Thesis , Masters , MBA
- Identifier: vital:10895 , http://hdl.handle.net/10948/104 , Affirmative action programs , Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , Calsonic Kansei South Africa (Firm)
- Description: The key aspect to stimulating economic and individual growth in the workplace has been shown in numerous case studies to be the removal of discrimination. Affirmative Action looks at dealing with, and making amends for past injustices, as well as moving towards equal employment opportunities in a constructive manner. It is about recognizing that people are inherently different whilst trying to achieve a “colour – blind” society. The Employment Equity Act No. 55 of 1998 was put in place by Government to facilitate the implementation of fair workplace practices, which will correct the imbalances of the past as well as creating a workforce, which reflects the demographics of South Africa. The inequalities in employment patterns and practices with respect to access to employment, training, promotion and equitable remuneration especially for black people, women and people with disabilities are addressed in the said Act. The Employment Equity Act is quite specific about the minimum requirements of an organisation’s Employment Equity Plan, which make it easy to identify what progress is being made towards ending discrimination in the workplace. The minimum penalty for contravening the Employment Equity Act is R500 000 and the maximum is R900 000. The question arises as to whether South African organisations are merely implementing Employment Equity policies to adhere to the basic requirements and deadlines of the Act. Or, are these policies genuinely based on commitment to the principles of equality and equal opportunity for all in the workplace. Calsonic Kansei South Africa has put into place various training and succession plans, which will help to achieve the organizational goal of being more equitable in terms of the Employment Equity Act. Employment agency databases have also been analysed to determine the availability of suitably qualified Affirmative Action employees. In this paper the writer will investigate the progress that Calsonic Kansei South Africa has made towards achieving Employment Equity in relation to other organisations within the same industry.
- Full Text:
- Date Issued: 2002
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