Lecture 2

 “We try to take a different look at stories and events around us. I think that South Africans enjoy this – they like to laugh at themselves and their imperfections.” - Quinton Cronje, NANDO’s MARKETING DIRECTOR. Sunday Times 29 August 2010.

 National Defense Force  National Intelligence Agency  SA Secret Service  SA National Academy of Intelligence  Staff and directors of COMSEC. (COMSEC - formally Electronic Communications Security (Pty) Ltd) is a company owned by the Government of South Africa through its National Intelligence Agency. COMSEC’s main task is to secure South African government communications against any unauthorized access and also from technical, electronic or any other related threats. The company also provides verification services for electronic communications security systems, products and services used by the South African government.)Government of South AfricaNational Intelligence Agencycommunications (Discrimination matters are dealt with by the Constitutional Court or a complaint lodges with the Human Rights Commission) These notes are insufficient for study purposes.

 Prohibits discrimination.  Employers must take steps to promote equality AND eliminate unfair discrimination.  Direct and indirect discrimination are prohibited.  Examples of each? See PGL par These notes are insufficient for study purposes.

 Requires every employer to take steps to promote equal opportunities by eliminating unfair discrimination in employment policies and practices.  Employer must address unfair discrimination in relation to wage differentials by way of collective bargaining / BCEA measures.  Medical testing of employees are prohibited unless permitted by legislation.  HIV testing is prohibited unless permitted by the Labour Court.  Psychometric testing is prohibited unless the test being used has been scientifically validated as one that provides reliable results and is appropriate for the intended purpose.  The test must be applied fairly to all employees irrespective of their culture to exclude bias to people from designated groups. These notes are insufficient for study purposes.

Dispute resolution: (Sect. 10)  Refer to CCMA (Not a bargaining council)  Within 6 months of the act or omission  CCMA – conciliation [30 days from referral]  No conciliation Certificate of non-resolution LC for adjudication  UNLESS parties agree to jurisdiction of the CCMA to have the matter arbitrated, rather than adjudicated These notes are insufficient for study purposes.

 ONUS:  Where unfair discrimination on one of the listed grounds is alleged, the onus is on the Employer (ER) to prove the discrimination was fair. [Presumption towards Unfairness]  If discrimination is alleged on one of the unlisted grounds, the Employee (EE) needs to prove both elements i.e. the discrimination and the unfairness thereof. [No presumption]. Chapter 2 These notes are insufficient for study purposes.

 Rationale: Purpose  To ensure that suitably qualified persons form designated groups have equal opportunities and are equitably represented in all occupational levels in the workplace.  Who is a suitably qualified person? Where any of the following is present: Formal qualifications Prior learning Relevant experience Capacity to acquire, within reasonable time, the ability to do the job These notes are insufficient for study purposes.

 In order to comply with AA-provisions, the ER must register an Equity Plan [developed for a max. period of 5 years].  This plan must contain, inter alia, AA-measures – study PGL par &  ER is not required to adapt its policies in such a way to exclude employment (continued & advancement also) of non-designated groups. –  PRESUMPTION: EXCLUSION = DISCRIMINATION. Chapter III

 Applies to “Designated Employer” & “Designated Employee”.  Designated employer:  >50 employees;  <50 employees but exceed the prescribed annual turnover of a small business as stipulated in the Act;  Municipality;  Organs of State in national and provincial spheres of Government;  Employer becomes a designated employer in terms of a collective agreement.  Employer excluded may become subject to the provisions:  By notification to the Director General.  Order of the Labour Court. Chapter III: APPLICATION These notes are insufficient for study purposes.

 Designated employees – with no preferential ranking specified;  Black people (Africans, Coloureds and Indians).  Women.  People with disabilities. Chapter III These notes are insufficient for study purposes.

 Assessment of compliance:  Director-General takes into account, inter alia, the extent to which suitably qualified people (SQP’s) are represented, economic & financial circumstances, planned vacancies & pool of SQP’s and progress made in implementing the E-plan.  Protection of EE Rights:  Contraventions made known to Trade Union, fellow employee, ER, CCMA, D/G or Labour Inspector.  No person may discriminate against an EE who is exercising any right conferred by the Act [including lawful / permitted disclosures].  No person may favour an EE in exchange for not exercising a right.  State Contracts:  Failure to comply with the Act’s provisions is sufficient grounds for rejection of any offer to furnish supplies / services to an organ of state.  Contravention:  Contravention of certain provisions = R500,000 – R900,000 / 3yrs imprisonment. These notes are insufficient for study purposes.

 Discrimination:  Kadiaka v Amalgamated Beverage Industr.;  Griggs v Duke Power Co.  Affirmative Action:  PSA v Minister of Justice ILJ 241;  McInnes v Technicon Natal ILJ 1138 (LC);  Hoffman v SAA ILJ 2357 (CC);  Swart v Mr. Video (1998) 19 ILJ 1315 CCMA. (see also Sect. 187 (2)(b) of EEA) Additional reading [not requirement]