Employers victimised by confusing legal terms
Uncertainty about the meaning of legislation can lead to industrial disputes and confusion among employers about what their labour law rights and obligations are. One term's meaning - that causes wide-scale confusion - is 'victimisation'. 'Victimisation' can be defined as 'targeted mistreatment carried out for a specific reason'. An example of this is when an employer overloads a single employee with work to force him or her to resign. Case law expands on the meaning of victimisation.
There isn't a set definition of workplace victimisation in SA legislation
South Africa's labour legislation doesn't deal directly with workplace victimisation. However, the Labour Relations Act (LRA) and Employment Equity Act (EEA) deal with victimisation in an indirect way by dealing with:
- Unfair labour practices,
- Unfair dismissals,
- Forced resignations,
- Unfair discrimination, and
- Other types of mistreatment.
Unexpectedly, labour legislation does not specifically prohibit an employer from shouting at, insulting, assaulting or making unfair threats against an employee. However, the Equality Court does have the power to deal with employer behaviour if it is seen as discriminatory in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
The Equality Court does not specialise in labour issues
It is more general in nature as it covers many aspects of life. For example:
- It would have jurisdiction where a store owner refused to serve someone because of their race.
The Sunday Times (15 February 2004) reported on the case of the editor of You Magazine where:
- The editor was taken to the Equality Court by Ms Gweba, a black reporter.
- Ms Gweba alleged that, during a performance appraisal, she had been insulted based on her race and about how she used the English language.
- According to the reporter, she was humiliated publicly by these discriminatory remarks.
- The editor of the magazine was reportedly given seven days to respond to the complaint and denied the allegations.
This case shows that the Labour Court can deal with labour-related matters even if legislation does not cover these matters. This is provided if South Africa's Constitution deals with the issue in dispute.
In the case of Walters vs Transitional Local Council of PE and Another (2001, 1, BLLR 98), the Labour Court held that it had the jurisdiction to make a finding on a constitutional matter that is not dealt with under the LRA as long as the LRA itself provided no remedy for the alleged infraction.
In this particular case:
- The employer had appointed a black job applicant for a job ahead of Ms Walters, a white female applicant, despite the fact that the white applicant was better qualified.
- The court found that this amounted to unfair discrimination and ordered the employer to appoint Ms Walters.
- This posed a serious problem for the employer as it had already appointed the black candidate and therefore had two employees but only one position.
The courts are cracking down hard on unfair discrimination
In the Walters case, the employer's defence was that it had appointed the black candidate for affirmative action reasons. However, while the EEA does provide for this, the court found that the employer's own affirmative action policy didn't allow such a step.
This case is significant because:
1. If the employer had had a proper and comprehensive affirmative action policy, the court probably wouldn't have interpreted the employer's conduct towards the employee as unfair discrimination based on her race,
2. the labour court can deal with unfair practices - including victimisation - covered by the constitution even these aren't covered in labour statutes, and
3. Employers who don't know the law can be penalised heavily for victimising employees.
A last word of caution
The courts and the CCMA not only have the power to order an employer to reappoint an unfairly disqualified employee; these bodies also have the right to impose heavy compensation awards on employers.
The combination of labour law, the constitution and the PEPUDA legislation means that 'victimisation' can denote almost any type of targeted unfair treatment. As a result, employers must step carefully as employees have a wide choice of options for dealing with alleged unfair treatment, giving them the upper hand.
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Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . |
