Class notes
Merc Law Topic 2 - Companies
- Course
- Mercantile Law 285
- Institution
- Stellenbosch University (SUN)
Mercantile Law Topic 2 Notes, Companies
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CHAPTER 6 – EMPLOYMENT EQUITYINTRO AND BACKROUND
• Employment Equity: Unfair discrimination and affirmative action
• The Employment Equity Act, 1998 (EEA)
• The EEA's goal is to give effect to sec 9 in two ways:
• Prohibition of unfair discrimination in the workplace
• An obligation on certain employers to promote equality for groups affected by
previous unfair discrimination through the application of affirmative action
UNFAIR DISCRIMINATION
What is unfair discrimination in the workplace?
• Section 6 of the EEA - Listed grounds of discrimination (direct or indirect)
“No person may unfairly discriminate, directly or indirectly against an employee (or applicant
for employment) in any employment policy or practice on one or more grounds including
race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin,
colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language and birth, or on any other arbitrary ground”.
• Includes ‘HIV status’ - see Hoffmann v SAA
• Relevant concepts from legislation
• "Employment Policy or Practice" = very wide
• "Employee"
• "No person" may discriminate
How to test if it was unfair discrimination?
• Test in Harksen v Lane:
Was there differentiation?
• If there was differentiation, was it on a listed ground? If so, discrimination is
established and there is a presumption of unfairness
• Even if it is not on a listed ground, determine whether the differentiation was
based on a characteristic that has the potential to infringe on the inherent
dignity of a person
Burden of proof?
• Listed ground = presumption of unfair discrimination. Employer needs to
prove fairness of discrimination or that discrimination did not take place
• Unlisted or arbitrary ground: Employee must prove UNFAIRNESS of
discrimination
Direct and indirect discrimination
• Direct discrimination = when the differentiating standard is directly based on a
listed/unlisted ground
• Indirect discrimination = when the ground on which the discrimination is based is
neutral, on the face of it, but in practice has a disproportionate impact on certain
categories of persons.
• Equal pay for equal work or work of equal value:
• Included by the 2014 amendments
• Unfair discrimination, unless employer can demonstrate that the difference in
remuneration or other terms of service is based on fair factors
• Right to equal pay?
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