SOUTH AFRICAN HUMAN RIGHTS COMMISSION

Racial Workplace Discrimination and the Equality Act

Submission to the Portfolio Committee on Labour, 3 August 2007

Summary

This submission will focus on the workplace as a place where racial discrimination occurs between employers and employees and between employees. For many people, the workplace is where a large percentage of their time is spent. In South Africa, it is also a place where people from different racial backgrounds interact. As a country we have implemented affirmative action legislation (e.g. Employment Equity Act) in order to transform our workplace and ensure that opportunities are available to persons who were previously excluded; and, that workplaces are representative. In the Commissions’ experience, many complaints of racial discrimination emanate from the workplace. The Equality Courts that have been established to address this type of discrimination are underutilised. There is a need for greater awareness raising about the Equality Courts. The Equality Act is an important mechanism to address continuing workplace racial discrimination in South Africa.

Introduction

The South African Human Rights Commission (SAHRC) welcomes the invitation extended to it to make a submission on workplace discrimination. Given the number of workplace racial discrimination complaints that the Commission has received, the submission will focus on this type of discrimination. The submission will highlight how the Promotion of Equality and Prevention of Unfair Discrimination Act 4/2000 (PEPUDA or Equality Act) can be used to address this type of discrimination.

The Mandate of the Commission

The South African Human Rights Commission was established in terms of Chapter 9 of the Constitution of the Republic of South Africa Act, 1996 (Act 108/1996) to strengthen constitutional democracy in South Africa. In terms of Section 184 of the Constitution, the SAHRC has the following specific functions:

· To promote respect for human rights and a culture of human rights,

· To promote the protection, development and attainment of human rights, and

· To monitor and assess the observance of human rights in South Africa.

In the performance of its functions the SAHRC is primarily guided by the Bill of Rights, as contained in the Constitution, existing rights as developed through our common law and other statutes and international human rights instruments.

The duty of the Commission to promote equality emanates from the Constitution, the

Human Rights Commission Act, and PEPUDA. The Commissions’ Equality Unit (the Unit) carries out the obligations entailed in the Equality Act which include:

To request any component of the State or any person to provide information on measures taken relating to the achievement of equality;
To include in the Commissions’ Annual Report (section 15 report of the Human Rights Commission Act) an assessment on the extent to which unfair discrimination on the grounds of race, gender and disability still persists in the Republic, the effects thereof and recommendations on how best to address the problems;
To promote respect and protection of the right to equality and eliminate all forms of discrimination against all persons in particular on the basis of gender, race and disability;
To institute proceedings in the equality courts in accordance with section 20 and section 25 (3) (a) of PEPUDA;
To Conduct investigations into any cases and make recommendations as directed by the court regarding persistent violations of PEPUDA;
To request from the Department of Justice the number of cases dealt with by the courts, the nature and outcome thereof; and
To consult with the Commission on Gender Equality when dealing with Equality Plans received from all the government departments.

Typical examples of workplace racial discrimination complaints received by the SAHRC

The Commission has taken a number of workplace racial discrimination cases to the Equality Court. Examples of these types of cases are set out below:

1. Ranto v Van Rooyen, Nelspruit Equality Court , Mpumalanga

The respondent Mr. Van Rooyen requested the complainant's ID book. He thereafter proceeded to make a copy of the complainants ID photo. However, he placed a picture of a baboon over her ID photo. He then gave the ID book and the copy of the ”baboon ID” (sic) back to the complainant. The complainant was distressed by the respondent's conduct. The court found that these actions amounted to racial harassment.

2. Cacadu vs Paul van Zyl, Beaufort West Equality Court, Northern Cape

The complainant had a dispute with his employer and was insulted. He was told to “loop jou kaffir” (sic). The court found in favor of the complainant.

3. Johannes Tities vs Gustav Ekkerd, Upington Equality Court, Northern Cape

The complainant alleges that he was called a ‘skelm hotnot’. The matter is currently awaiting decision of the presiding officer on whether the matter will be heard in the Equality Court or referred to another forum.

4. Typical cases that the Commission is currently dealing with.

The Commission regularly receives cases of racial slurs and utterances being made in the workplace. The brief description of a sample of these cases is contained below:

Complaint against a magistrate who allegedly treats others in the workplace with disrespect. Toilets only used by certain staff members. Would humiliate and shout at colleagues in front of others.

Alleged racism in the work place.
Racial utterances in the work place
Complainant assaulted by white supervisor.
Staff member of hospital uttered “hardkoppige Boesman en K under cover” to complainant.
Alleged racism at SAPS against white police officer. Alleged racism at SAPS against white police officer
Two black employees hijacked with employer’s vehicle. Intimidated. White drivers don’t get intimidated when hijacked.
Complainants allege that there is a new form of racism in the SAPS against whites. Complainants allege that non-whites organize themselves in such a manner that whites are forced out of the army.
Complainant alleges that his White foreman at work has called him unsavoury names for the past four years. He alleges that he has been referred to with terms such as ‘you are a dog’ or as ‘klein balaas’.
Complainant Christian, manager insulting him because he eats pork. Manager Muslim.
SACCAWU is lodging a complaint against Mr M an employer for referring to his employee as “K”.
Complainant called monkey by supervisor and told to “f off”.
Complainant called names at the work place.
A complainant alleges that one of her seniors at work called her by names i.e “monkey – bitch – idiot - stupid”
A trade union representative alleges that two managers and a director has emotionally abused employee. According to the complainant he was called a Baboon. Further that his illness was disclosed in front of customers and colleagues.

The under usage of the Equality Court

The Equality Courts have not been used as frequently as was anticipated. In fact, these courts are under utilized. With regards to cases of workplace racial discrimination the Commission has noted that there is confusion, a misunderstanding or lack of knowledge and awareness about how the Equality Courts can be used to address racial discrimination in the workplace.

Dual jurisdiction of EEA and PEPUDA?

The Employment Equity Act 55 of 1998 (EEA) only extends to racially discriminatory policies and practices. Not all acts of discrimination fall within these categories. Any act outside of these categories can be addressed in terms of PEPUDA.

“No person may unfairly discriminate, directly or indirectly, against any employee, in an 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.” (EEA section 6).

Thus, in terms of the EEA all racial discrimination that emanates from or arises out of an employment policy or practice must be dealt with through the mechanism of the CCMA. However, there are some acts of racial discrimination that fall outside of being an employment policy or practice. It can even be difficult in some instances to determine whether the alleged act of racial discrimination falls within the scope of being an employment policy or practice. Many of these acts arise out of the every day social intercourse between individuals at the workplace. An example of this type of racial discrimination would be that which was suffered by Ms. Ranto in the case described above. The racial discrimination that was incurred did not arise out of an employment policy or practice. In fact, the employer, took disciplinary steps against the perpetrator and sent out a clear message that such acts of racial discrimination were not acceptable in the workplace. This though did not allow the perpetrator to avoid the proceedings in the Equality Court and for a finding to be made against him.

In the Commissions’ view acts of discrimination that occur on a one on one basis within a social/employment environment are important areas of discrimination that need to be addressed if we are to build a human rights culture in South Africa based on equality, dignity and freedom. There is a need to send a strong message to individuals that racially discriminatory acts within the workplace, such as racial slurs, will not be tolerated in the workplace. Individuals should be aware that such acts may give rise to both disciplinary action within the workplace as well as the matter being taken to the Equality Court.

SAHRC has jurisdiction in terms of PEPUDA to address racial discrimination in the workplace

Whilst the EEA seeks to exclude the jurisdiction of other legislation in respect of employment practices and policies, the Commission is of the view that in terms of its obligations in terms of PEPUDA, read with its constitutional mandate set out in section 184(1) and (3) of the Constitution, that the Commission can comment and make recommendations concerning discriminatory employment policies and practices.

The Commission is of the view that section 5(3) of PEPUDA ( “This Act does not apply to any person to whom and to the extent to which the Employment Equity Act, 1998 (Act 55 of 1998) applies.) does not exclude the Commission from addressing and including workplace racial discrimination in its section 28(2) report (an assessment on the extent to which unfair discrimination persists in the Republic, the effects thereof and recommendations on how best to address the problems) .

In terms of the draft PEPUDA regulations, all employers with 150 or more employees will be required to prepare Equality plans. These plans will have to inter alia analyze areas of unfair discrimination and inequalities, how these will be addressed, goals and objectives and measures to be implemented to achieve these. It is thus clear that the Commission has a mandate to monitor discrimination in the workplace and to intervene in terms of its constitutional mandate.

The Commission is in the process of appointing a business and human rights coordinator and is about to conduct a survey on workplace discrimination to be followed by roundtable workshops with the business sector.

Need for PEPUDA regulations

The Regulations to PEPUDA are yet to be promulgated. The effect thereof is that the SAHRC cannot act in terms of section 28(2) and draft an annual report in terms thereof. Thus, the lack of promulgation inhibits the Commission from carrying out its envisioned duties in terms of PEPUDA and contribute towards the elimination of racial discrimination.

Recommendations

There is a need for further training and awareness raising around the Equality Act and how the provisions contained therein can be used to address incidents of discrimination arising out acts that occur at the workplace.
There is a need for trade unions to train their shop stewards on the Equality Act.
The PEPUDA Regulations need to be finalized and promulgated as speedily as possible.

Comparison of EEA and Pepuda
Area	Employment Equity Act (EEA)	Equality Act (PEPUDA)
Application to persons	EEA applies to all employees and employers in its Chapter 2 prohibition of unfair discrimination. However, affirmative action obligations of EEA Chapter 3 apply only to designated employers and people from designated groups. Members of the National Defence Force, the National Intelligence Agency, or the South African Secret Service are exempt from the EEA in its entirety.	PEPUDA binds the State and all persons. (PEPUDA section 5(1)). PEPUDA applies to the National Defence Force, the National Intelligence Agency, and the South African Secret Service.
Application in law	The enumerated provisions of the EEA prevail over PEPUDA.	PEPUDA prevails over any other law other than the Constitution. (Section 5(2)). However, PEPUDA does not apply to the enumerated provisions of EEA. (PEPUDA section 5(3)). Thus, any area in which EEA does not explicitly provide or circumscribes a right, obligation, practice or policy, PEPUDA will apply.
Unfair Discrimination Provisions	“Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.” (EEA section 5) “No person may unfairly discriminate, directly or indirectly, against any employee, in an 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.” (EEA section 6). · The limitation of this provision to “employment policy or practice” may be construed to mean that there employee to employee discrimination because employment policy or practice connotes implementation or origination from an employer. · Though the use of the term “including” implies that unfair discrimination is not limited to the grounds listed in this subsection, there is no criteria mentioned for determining unfair discrimination in employment policies or practices for grounds not listed here.	“Neither the State nor any person may unfairly discriminate against any person.” (PEPDUA section 6) The prohibition is all encompassing of unfair discrimination. Although the prohibited grounds, especially those of race, gender and disability, are highlighted as grounds for which any discrimination is presumed to be unfair, there are guidelines to determine unfair discrimination for grounds not listed.
Harassment	“Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds, listed in subsection (1).” (EEA Section 6(3).) Whereas the grounds listed in EEA Section 6(1) is not meant to be exhaustive for purposes of unfair discrimination, it appears that the harassment provision is limited only to the listed grounds of that subsection.	“No person may be subject to harassment.”(PEPUDA section 11) PEPUDA may apply to instances of harassment that are not based on the listed grounds of EEA section 6(1).
Complaints procedures	An employee or party to a dispute must refer the dispute to the Commission for Conciliation, Mediation, and Arbitration (CCMA) which must attempt to resolve the dispute through conciliation. If the dispute is unresolved by conciliation, the parties may either refer it to the Labour Court for adjudication or consent to arbitration. (EEA section 10). Since PEPUDA does not apply to the extent that the EEA does it would seem that any matter that could be referred to the CCMA, could not be referred to the Equality Courts. There is no indication that the CCMA or the Labour Courts have the power to refer matters to the Equality Court.	Complainants or a party authorized by PEPUDA section 20(1) may bring a matter to the Equality Court for adjudication (PEPUDA section 20). The presiding officer of the Equality Court may refer the matter to an alternative forum (PEPUDA section 20(5)). PEPUDA section 5 does not list alternative forums and thereby extends the presiding officers powers of discretion to decide what forum is appropriate to hear the matter being referred. It is presumed that the CCMA is an appropriate alternative forum, but there is no indication whether a matter may be referred directly to the Labour Court.
Appeals	A matter may be appealed to the Labour Court or submitted for arbitration only if the CCMA was unable to resolve it through conciliation (EEA section 10(6)). There is no indication that a decision by the CCMA or the Labour Court may be appealed to an Equality Court.	Appeals to Equality Court decisions may be appealed to the High Court that has jurisdiction or to the Supreme Court of Appeals. In certain cases, an appeal to an Equality Court decision may be made directly to the Constitutional Court. (PEPUDA section 23).