Employers Must Ensure Compliance With Anti-discrimination Procedures MyZA

Johan Botes, a director in the Employment Practice at Cliffe Dekker Hofmeyr has warned employers that, “Workplace policies and practices should be carefully scrutinised to ensure that the effect of such practices or policies is not that it unfairly discriminates against employees on any of the grounds listed in Section 9 of the Constitution or Section 6 of the Employment EQUITY Act (EEA).

The honourable Minister of Labour, Mildred Oliphant issued a clear warning to employers of the Department of Labour‘s intention to address workplace discrimination in her budget vote speech at the end of May. The Minister highlighted as one of the Department’s goals for the next year to “…reduce inequality and discrimination in the labour market through effective compliance monitoring and enforcement of the Employment Equity Act …”

She indicated further that her department “… remains focused in ensuring the highest level of compliance by companies. In this regard, Notices have been issued to non-complying employers and we have referred 295 cases to the Labour Court and 415 employers to the magistrate’s court. We hope that those who flout the law will be successfully prosecuted.”

According to Botes, “Our Constitution provides the bedrock for equality legislation where it provides in Section 9 that “[The State and No person] may directly or indirectly discriminate against anyone on one or more grounds, including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Botes notes that the EEA contains a mirrored provision which also includes HIV status as a prohibited ground for discrimination.

Botes warns, “An employer may also be held vicariously liable for the breaches of the EEA by its employees. The judgment of the Labour Court in NTSABO v REAL SECURITY CC is an example of an employer being held liable for the sexual harassment of one of its employees committed by another employee. In that case, the Labour Court awarded the harassed employee R70 000, 00 in damages for the harassment she suffered at the hands of her supervisor. The employer was ordered to pay the damages and compensation awarded to her,” he noted.

Botes says that employers should ensure that harassment is covered in their workplace policies, that the policy is communicated to staff and that employees know what to do when confronted with (and to whom to report) incidents of harassment.

“All harassment should be investigated and appropriate action taken against culprits if employers wish to escape vicarious liability. Employers who fail to take appropriate action may be faced with not only the negative publicity associated with such litigation and loss of talented staff not willing to work under those circumstances, but may also be faced with a hefty legal bill and compensation order for their (in)action,” he adds.