The Employment Equity Act (EEA) provides guidelines on how to deal with unfair discrimination and recourse for employees who suffer the consequences of unfair discrimination. It is about promoting equal opportunities for all employees and seeks to redress imbalances of the past which were experienced by historically disadvantaged individuals (who are known as designated groups).

Section 60 obliges the employer to promote awareness and act immediately when learning of a possible discrimination:

(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

Non-Receipt Of Certificate Of Compliance

The Employment Equity Act Amendments which are expected to be promulgated mid 2021 also proposes that employers should not receive a certificate of compliance should they be found to have unfairly discriminated against employees. This certificate of compliance will prohibit employers from doing business with the state in terms of Section 53 of the EEA.

There are no fines imposed for the non-compliance with Chapter 2 of the EEA (unfair discrimination), however, the Act states that the CCMA and/ or Labour Court many make any appropriate award against the employer.

Hence, aggrieved employees can refer unfair discrimination claims to the CCMA and/or the Labour Court.

The question now arises as to what recourse an individual can have against a perpetrator of unfair discrimination who is NOT an employee of the same employer (i.e. an external party such as a contractor or visitor to the workplace). This is where PEPUDA steps into the gap and enables litigation against such third parties.

Whichever way you look at it, employers will be negligent not to design, implement, create awareness and enforce fair discrimination and prohibit harassment of any person, albeit a fellow employee or otherwise.

If you would like to discuss the above further – or any other employment equity matters with me – please don’t hesitate to contact me on [email protected].

Kind regards,