FAIR DISCRIMINATION

DISCRIMINATION: The law provides for redress for an *employee who is subject to an unfair labour practice in the workplace.

An unfair labour practice includes any unfair act or omission that arises between an employer and employee, involving unfair discrimination, whether directly or indirectly, against an employee. (*employee includes an applicant for employment.) 

Fair discrimination:

The law sets out four grounds on which discrimination is generally allowed-

         i.   Discrimination based on affirmative action; 

         ii.  Discrimination based on the inherent requirement of a particular job;

        iii.   Compulsory discrimination by law; and

        iv.   Discrimination based on productivity

i. Discrimination based on affirmative action

Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups – blacks, women and disabled persons.)  Affirmative action aims to achieve equality at work without lowering standards and without unduly limiting the prospects of existing employees, for example by getting rid of discrimination in company policies, procedures and practices.  Its main aim is generally to ensure that the previously disadvantaged groups are fairly represented in the workforce of a particular employer.

ii.  Discrimination based on the inherent requirements of a job

Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination.  An inherent requirement of a job depends on the nature of the job and required qualifications.  If such requirements can be shown, discrimination will be fair, for example a person with extremely poor eyesight cannot be employed as an airline pilot.

iii.  Fair compulsory discrimination by law

The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after birth…

iv.  Discrimination based on productivity

It is also fair by law for the employer to discriminate on the basis of productivity (for instance when giving merit based increases).  This would of course be dependent on the fairness of the criteria utilized for assessing performance and productivity.  

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