Is all fair with love and equity in the workplace?
By Rita Lally, Director
SmartMoves Human Capital (Pty) Limited
Following the amendments to the Employment Equity Act last year, did you know that as an employer, under Schedule 1, Section 6(1) you could be taken to the CCMA if you:
“unfairly discriminate, directly or indirectly, against an employee, in any policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth “or on any other arbitrary ground... and if there is
‘a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based or any one or more of the grounds listed”.
If unfair discrimination is alleged on a ground listed above, you as the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination did not take place as alleged; or is rational and not unfair, or is otherwise justifiable. If unfair discrimination is alleged on an ‘arbitrary ground’, the complainant must prove, on a balance of probabilities, that the conduct complained of is not rational; amounts to discrimination; and the discrimination is unfair. This section opened the door wide for a variety of challenges.
At the end of September, the annual Employment Equity Report will be due for submission to the Department of Labour by designated employers. Some companies will be breathing a sigh of relief that they don’t need to submit a Report or indeed, draft a Plan. But the Act is more than that, as you can see from the above, ‘equity in employment’ affects not only the designated employers, but ALL employers. Do not fall into the trap of believing it does not apply to your organisation. Under Section 6(1), it clearly does.
The Act is not only about quantifying the number of employees represented at each level; who was recruited; who resigned, how many disabled people are employed, etc. The focus has always been that employers ensure the essence of the employment relationship and treatment of all employees is fair in the first instance. If this happens, the rest will surely follow?!
The change in the Act last year has emphasised a zero tolerance for ‘window dressing’ as the value of the job must align with the level of employment and internal pay structures. There are of course arguments against paying people the same, especially if one person has more experience, but unless the job is objectively evaluated and you can substantiate differences, you could find yourself having to defend your actions. Line managers too, also need to familiarise themselves with the type of actions that could be seen to be ‘unfair’ which could lead to an ‘arbitrary ground’ challenge when leading a team of people, for example, “s/he didn’t invite me to attend the conference; or training, or golf day ... everyone else went”, or more often “when I am late for work, it’s an issue, when s/he is late, nobody says a thing!; “I was not allowed to take leave..”, etc. Be aware, consistency in management of people has always been important, but more so now.
The Department of Labour has been fairly active this last year in following up on companies that have not submitted Reports, as well as those who do not have to! We recently heard that 1000 companies were being taken to the Labour Court for contraventions under various Sections of the Act. Furthermore, the latest Department of Labour Report on the employment equity movement over the previous year does not reflect an expected higher proportion of previously disadvantaged people in senior and top management positions. The Employment Equity Act is not going away, if any amendments are made again, these will definitely lead to tighter regulations and compliance for all.
If you are a designated employer, how is your company fairing? Try out our quick Employment Equity Compliance Assessment on our website for an indication.
SmartMoves Human Capital (Pty) Limited
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