Dismantling discrimination in the workplace
26 July 2018
The ground-breaking court judgment that held Imperial Holdings Limited and its CEO Mark Lamberti jointly and severally liable for impairing the dignity of Associated Motor Holdings financial manager Adila Chowan provides much needed hope for victims of discrimination in the workplace.
The judgment highlights the challenges of eradicating systemic discrimination and inequalities in South Africa. The sad reality is that many victims of discrimination cannot afford to exercise their rights, as it is expensive to litigate while arbitration of discrimination disputes is only compulsory for certain categories of employees. This leaves many victims of discrimination in limbo making it difficult to break the pervasive cycle.
The fact that the Employment Equity Act limits compulsory arbitration of discrimination disputes does not preclude companies from developing policies to extend arbitration to all employees. However this is unlikely to happen, as many employers are well aware that the CCMA is cost effective and less cumbersome thus making it accessible to aggrieved employees.
Civil society in particular organisations that represent the interests of women, black people and people with disabilities need to focus more on nudging employers to change their attitudes towards compulsory arbitration of discrimination disputes for all employees. These organisations are key stakeholders that should be consulted by companies in line with the United Nations (UN) Global Compact that forms part of the regulations of the Companies Act. These regulations require listed and state owned companies to establish Social and Ethics Committees that are responsible for ensuring compliance with legislation such as the Employment Equity Act. The UN Global Compact encourages companies to adopt the Global Reporting Initiative Guidelines to report on issues such as discrimination in the workplace and how stakeholders are consulted to eradicate the scourge.
Workplace discrimination in South Africa is a matter of public interest as correctly pointed out in the court judgment against Imperial Holdings and its CEO. This means that listed and state owned companies are duty bound to consult stakeholders that represent the interests of race, gender and disability to eliminate unfair discrimination in the workplace and to advance affirmative action. The Companies Act and its regulations provide leverage for civil society to compel companies to adopt alternative dispute resolution policy. Adoption of such policy would encourage employees who are weary of exposing discriminatory practices to be more open. Companies are more likely to consider adopting this kind of policy if there is pressure from civil society.
The Employment Equity Act also requires employers to develop policy and procedure for resolution of disputes about the implementation of equity plans. However this is not happening in many companies, as employers tend to use the standard grievance procedures that are often not conducive to the resolution of affirmative action grievances. The empowering provisions in the Employment Equity Act and the Companies Act need to be tested by civil society as a matter of urgency.
The focus on development of this policy is not sufficient in itself, as the systematicness of the problem requires a shift from reductionist thinking where problem symptoms tend to be treated in isolation from the fundamental problem. It is therefore important to also consider the effectiveness of Employment Equity Committees established by employers to consult with employees when developing and implementing Equity Plans to achieve affirmative action targets. Evidence suggests that these committees are ineffective, which is one of the contributing factors to wanton violation of the equity act. Civil society depends on the effectiveness of these committees to ensure robust application of alternative dispute resolution policy.
The role played by the Department of Labour in enforcing the Employment Equity Act further requires intensified efforts by civil society to address the glaring shortcomings of its inspectorate. It is unacceptable that many companies continue to violate the Act in spite of the amendments that provide for fines linked to companies’ turnover.
The failure to enforce the Act has enabled many companies to be more brazen in their disregard of affirmative action.
The Chowan judgment provides a window of opportunity for coalescing of stakeholders to build on the outcomes of the National Dialogue on Business and Human Rights that was recently convened by the South African Human Rights Commission. The Commission has rightfully included business and human rights as a crucial pillar in its strategic plan 2015 to 2020, which requires active citizenry for the strategy to be realized.
Evidence suggests that organisations that represent the interests of race, gender and disability are weary of litigating except for Solidarity and AfriForum that have developed effective litigation strategies to protect the interests of their constituency. It is therefore prudent for other interest groups to advance alternative dispute resolution to protect the interests of their constituencies that continue to be exposed to daily discriminatory practices in the workplace.
Sadly the conduct of some of the leaders in these organisations leaves much to be desired, as they tend to focus on self-interests. Many of them serve as directors in companies that are moving at a snail pace to implement the Employment Equity Act. It might be prudent for members of these organisations to consider electing leaders with track record in referral of discrimination disputes to the CCMA or Labour Courts. So far rhetoric seems to be the dominant criteria for selection of leaders in these organisations.
It will be foolhardy to assume that employers will learn from the court ruling against Imperial Holdings. There have been several court judgments on discrimination in the workplace and yet many employers still continue with the practice. The need for alternative dispute resolution to ensure accessible, cost effective and expeditious resolution of disputes is getting more and more palpable.
– Isaac Matheta Swafo is a Non-Executive Director and chairman of Social and Ethics Committee at Communicare Social Housing Institution. He is an affirmative action litigant who completed a Masters dissertation on alternative dispute resolution of affirmative action disputes in 2017.