They need to be reminded about hiring and firing procedures, or risk being sued
Glenda Daniels
It has been four years since the Employment Equity Act came into effect yet employers continue to flout legislation and, consequently, are forced to pay out huge sums of money in litigation suits.
Failure to employ can be grounds for litigation and so can failure to promote. So too can retrenching a disabled person, or flouting proper procedures to dismiss.
From 1996 to February this year there have been 263 000 unfair dismissal cases filed to the Commission for Conciliation, Mediation and Arbitration (CCMA), constituting more than 70% of the cases received by the organisation. Even now employers are still found wanting in terms of whom they hire and how they fire.
Often, in desperate attempts to cut labour costs and meet the demands of globalisation, employers are also failing to consult unions in their process to downsize labour, or to follow due process of warnings and training in the case of under-performance.
Disabled people who are afforded a special place in equity legislation and in the Constitution claim they are the first targets of retrenchment, and regard this as unfair discrimination.
Last month a multilingual albino East Rand man, Motsamai Kgathole, who passed his security guard test with flying colours, had employers totally impressed with him on the telephone. But on meeting him personally they were put off by his colour. One employer said to him he did not employ black souls with white skins. The head of the Albinism Society of South Africa, Mangaliso Ngcobo, said that albinos “often get called for interviews and then are told they are not qualified for the job”.
In another incident of discrimination last month, two blind people were the first to be retrenched during a restructuring of a company in North West. They have filed a case of unfair dismissal at the CCMA.
Workplace specialist Tracy Harper says that disabled people have the same rights as everyone else, “and if they meet the job requirements, they shouldn’t be discriminated against according to the law. Employers must ensure reasonable accommodation of disabled workers in the workplace.”
In addition to flouting equity legislation, employers still ask discriminatory questions during interviews for jobs.
Gayleen Baxter of Kelly said executives forget that under new legislation companies are still open to litigation, even in cases where no employer-employee relationship exists. Job candidates can sue if they suspect they were unfairly passed over in favour of other candidates.
Some reasons that potential job candidates can cite as discrimination include being asked about their age, child care if the candidate is a woman (this is gender discrimination), about their religion, race or sexual orientation, disability or HIV status except in the army, where HIV status has to be disclosed.
Baxter says that the first step for employers is to ensure that company policy clearly states there are no discriminatory employment practices, and to make use of specialist recruiters who carry out exhaustive reference background checks, so that screening processes shortlist candidates from several hundred to less than a dozen. “The smaller the volumes, the lower the statistical risk of litigation from the few who fall short.”
Another requirement for employers is to shape up on their interview skills and use politically correct tact. For example, if you are not asking a man how he is going to take care of his children while he is at work, do not ask the same of a woman.
“South Africans are not yet a litigious breed. We have yet to see a flurry of failure-to-employ litigation. But it could happen,” says Baxter.
While litigation by would-be employees has not taken off in a major way, employers have a chance to make sure that it doesn’t happen by becoming more familiar with the law.
In the meanwhile it seems that companies have not learnt lessons from those unfair dismissal cases they lost at the CCMA.
“It would depend on who these employers are. Often it’s the small employers who are not conversant with the legislation and find it laborious to go through the whole process,” says Jackie Kelly of labour consultant Andrew Levy and Associates.
“The bulk of the cases are over unfair dismissals but there are always two sides of the story. And if there has been an oversight on the part of the employer, this comes to the surface during the process, which is an educational one at the CCMA.”
l Seminars will be held by Andrew Levy and Associates on how employers can find reasonable accommodation for disabled employees in the workplace. They will be held in Durban at the Royal hotel on March 27 and 28, in Cape Town at the Vineyard hotel on March 29 and 30, and in Johannesburg on April 2 and 3 at the Rosebank hotel.
Additional reporting by Suzan Challa