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Unfair 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.)   

Any employer’s policy or practice showing favour, prejudice or bias for or against employees in terms of any arbitrary ground including, but not limited to:

  • Race,

  • Gender,

  • Sex,

  • Pregnancy,

  • Marital Status,

  • Family Responsibility,

  • Ethnic or Social Origin,

  • Colour,

  • Sexual Orientation,

  • Age,

  • Disibility,

  • Religion,

  • HIV Status,

  • Conscience,

  • Belief,

  • Political Opinion,

  • Culture,

  • Langage and Birth, and which is not fair can be deemed to be unfair discrimination.  

There are two forms of discrimination related to “unfair discrimination” namely-

  • Direct discrimination; and

  • Indirect discrimination

Direct discrimination is easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds.  For example an employer follows a policy of remunerating a female employee on a lower scale simply because she is a women, whereas a male employee is remunerated at a much higher scale for doing the same work.

Indirect discrimination, on the other hand, is not as easily recognisable as it is a more subtle form of discrimination.   It involves the application of policies and practices that are apparently neutral and do not explicitly distinguish between employees or job applicants but that, in reality, have a disproportionate and negative effect on certain individuals or groups.  The laws also emphasise that:

  • Sexual harassment will be prohibited; 

  • Medical testing will not be allowed unless it is an inherent requirement of the job;

  • Psychological testing or other assessment cannot be done unless such tests are validated and will not be biased;

  • In addition, HIV testing can only be carried out if authorised by the Labour Court;

  • All these protectinos also apply to applicants for employment.

Essentially one has to give consideration to the impact of actions, policies and procedures when evaluating discriminatory practices rather than the intention thereof.

Steps to take when unfair discrimination takes place:

Any employee who feels that he/she has been unfairly discriminated against, or that an employer has contravened the laws, can lodge a grievance with their employer.  The matter can be referred to the CCMA within six months of the unfair discrimination taking palce when the matter cannot be satisfactorily resolved at the workplace.  If the CCMA is not able to resolve the dispute through conciliation, the matter can either be referred for arbitration (if both parties agree) or to the Labour Court for adjudication.

Information contained herein in is based on documentation available from the CCMA. 

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