Week beginning Sunday, 4 May 1997

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LARRY Shear, a commissioner with the C.C.M.A. elaborates on the impact of the new Labour Relations Act and how it has been structured to ensure equality of race, gender, sex and remove discriminating practices from the work place.

In addition, Labour Guides, in association with Rael Solomon and The Labour Consultancy, examines the issue of unfair dismissals. We also examine a case study of a recent judgement by the CCMA regarding the unfair dismissal of a domestic worker. Don't forget to read our letters page which contains advice on a range of real-life issues.

DISCRIMINATION & AFFIRMATIVE ACTION

The Labour Relations Act, like the constitution prohibits discrimination. You will recall that it is automatically unfair to dismiss anyone because of discrimination. Under previous labour law, only persons who were actually employed were protected. Under the new Act, it is also against the law to discriminate against job seekers. Before we go any further, it is necessary to discuss and understand the concept of discrimination in the industrial relations sense.

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The Act says it is automatically unfair to dismiss an employee if the reason for the dismissal is that the employer unfairly discriminated against an unemployee, directly or indirectly, on any arbitrary grounds, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility. A number of key words in this paragraph require discussion. These are for example:

"The employer unfairly discriminates", It is clear from the words that the discrimination must be unfair. People discriminate every day of their lives. When you choose a brand of chocolate or cigarettes in favour of another, you are discriminating in favour of the first brand. If you decide to share an office with X instead of Z you are discriminating against Z. This does not necessarily mean that the discrimination is unfair. If you nominate X to be promoted over A, B and C it does not necessarily mean that this is unfair etc... It could possibly be unfair discrimination, however, if the discrimination is based on arbitrary grounds without any logical, practical or fair reason for the decision. For instance, if a person was chosen for promotion because of his or her performance or qualifications, this would possibly not be regarded as unfair. But, if the person was chosen an the reason was not related to his or her skill, but related solely or mainly to his or her race, gender, sex.... etc that would be, in the absence of a very good and acceptable reason, be regarded as unfair discrimination.

Therefore, if an employee is dismissed and the reason for the dismissal is not based on any reason other than race, gender etc. that would be considered arbitrary grounds, and would most likely be automatically unfair.

The Act says, however, that discrimination may appear to be arbitrary, but may be regarded as fair if for example the reasons for dismissal is based on the inherent requirements of a particular job or, if the employee has reached the normal or agreed retirement age.

Another category of unfair discrimination relates to action which falls short of dismissal. This could relate for example to an employee being over looked for promotion, not receiving an increase or not receiving the same pay for similar or the same work. The list is endless, and will vary from case to case.

The Act says an employee commits an unfair labour practice in respect of any unfair act or omission that arises, between employer and employee involving unfair discrimination, either directly or indirectly, against an employee on "any arbitrary ground including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, believe, political opinion, culture, language, marital status or family responsibility".

Although the discrimination referred to above relates to conduct between employer and employee, the Act says that in this regard an "employee" includes an "Applicant for employment". In other words, it is not acceptable for a prospective employer to discriminate against a job seeker on the grounds mentioned above. This does not of course mean that an employer is not allowed to discriminate when he or she chooses a candidate for employment. As stated above, each time a prospective employer chooses one candidate in favour of another, he or she is discriminating against unsuccessful candidates. What it does mean however, is that the discrimination must not be arbitrary and based solely or mainly on the grounds mentioned above, ie. race, gender etc. If the selection is found to be unfair discrimination, it will be unfair labour practice under the new Act, and the employee may well seek and be given either compensation and/or the job which he or she originally applied for.

There are two exceptions or defences to an unfair labour practice based on discrimination. These are:- 1. If the discrimination is based on the inherent requirements or needs of the particular job - eg. if the position advertised is for a doctor, it is reasonably expected that the successful candidate will be a qualified doctor. Or if the position advertised is for a nurse in a nursing home with female patients, it may be appropriate (and not arbitrary) to hire a female nurse.

2. The second defence is what is commonly referred to as affirmative action. The Act says the following:

An employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. Affirmative action is an extremely sensitive issue, and an entire book can be written on this topic alone. The purpose of an affirmative action programme is to promote and encourage persons who have been discriminated against in the past. This can of course apply to any racial group, sex or class of persons (eg. physically handicapped) who have been prejudiced as a result of unfair policies, practices, attitudes and obstructions in the past.

At this stage, there is no specific legal requirement requiring an employer to implement an affirmative action programme. However, we believe that the law will be changed in the near future to incorporate affirmative action practices.

It should be noted that a job applicant is not entitled to rely on affirmative action as a weapon to demand a job. It is rather up to an employer to defend his or her action in making a particular choice - ie based on the policy of affirmative action. But, remember, before an employer can successfully raise the argument it must prove that it had an affirmative action policy programme in place, and is not merely acting in a random manner. If it has not implemented such a programme the employer can easily be accused of acting in an unfair and discriminatory way.

Before leaving this discussion on affirmative action, it can be said that affirmative action programmes are not designed merely to satisfy the needs of an employer. The purpose is to advance and encourage the concerns and aspirations of persons previously disadvantaged, to remove all obstacles and to establish an atmosphere of fairness, equality and equal opportunity.

AUTOMATICALLY UNFAIR DISMISSALS
In terms of the new Act every employee has the "right to freedom of association". The employee may join or be a member of a trade union, workplace forum or any other structure approved by the Act. The Act similarly also covers any person seeking work. It is made quite clear that an employer who prevents an employee or prospective employee from participating in any proceedings or exercising any of the rights in terms of the freedom of association clauses of the act may be charged with "automatically unfair dismissal" of the employees concerned.

A dismissal is automatically unfair if the employer acted as discussed above or dismissed an employee because :-

1. The employee participated or supported a strike, proposed strike or protest action that was "protected" in terms of the Act.
2. The employee refused to do the work of an employee taking part in a "protected" strike.
3. The employee took action or indicated his intention to take action in terms of the rights conferred on an employee in terms of the Act.
4. Of the employees pregnancy or any reason related to her pregnancy. N.B. This clause must be observed by all employers who wish to avoid costly labour action.
5. The employer unfairly discriminated against an employee on any arbitrary basis including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

CASE STUDY: DOMESTIC WORKER'S DISMISSAL

There is considerable uncertainty surrounding part time workers (people who only work on a certain day / days of the week) as covered by the LRA.

During our regular columns we will investigate this issue in greater detail. We show below a recent arbitration award by the C.C.M.A which we found very interesting. Names have been changed.

Arbitration between:- ZUMA - employee party
and
BROWN - employer party

• Employers Representative - No appearance
• Employee representative - Mrs Julia Zuma

BACKGROUND TO THE ISSUE
Zuma was employed as a domestic worker by Brown in October 1996 to perform domestic work for one day per week (Thursdays) at a wage of R30 per week.

SURVEY OF EVIDENCE AND ARGUMENT
A messenger testified that he had personally delivered the subpoena and a letter from the Commissioner to Brown's residence in March 1997. Nobody had been at home so he had pushed the subpoena under the door of the flat.

Zuma then gave evidence on her own behalf. She stated that she had started working for Brown in October 1996. She had been paid at the end of October. In the first week of December she reported for work as usual. On this day she was expecting to receive her pay for November being R120. She worked as usual, following instructions. Towards the end of the day she was sent to the shop for milk. Upon returning with the milk, Brown accused her of having stolen a coffee mixer, a petticoat and two cups. Brown dismissed her, telling her that she should sell the items which she had stolen and make up her wages from the proceeds. Zuma denied having stolen anything from the employer, and pointed out that the employer was always present in the house with her whilst she was working. Brown swore at Zuma and kicked her out of the house.

Zuma has another piece work three days per week, but relied on the fourth day because she supports her two school-going children, a baby, and her unemployed parents.

Zuma stated that she believes that Brown dismissed her because Zuma had mentioned to her that she wished to return to her home for two weeks during December.

ANALYSIS OF EVIDENCE AND ARGUMENT
Zuma was unfairly dismissed by Brown. She is entitled to the maximum compensation which I can award.

AWARD
Brown must pay to Zuma an amount of R30 times 52 weeks which amount to R1560-(one thousand, five hundred and sixty rands) on or before end of March 1997. Brown must deposit this amount into Zuma's bank account.

We welcome browser comment on this case.