discrimination

Many organisations experience hostility between employees for a number of reasons: favouritism, nepotism, affairs, jealousy over promotions, power struggles, sexist, racist, or bigoted behaviour - are just some of the situations. An employer may believe that the easist way to solve the problem is simply to dismiss the employees involved. This week Ivan Israelstam explains how this approach may backfire. 

This week Ivan Israelstam gives examples of fair discrimination.  Then explains how one employer was able to successfully defend against an allegation of unfair discrimination, and another employer could not defend against a dismissal that was found to be an automatically unfair dismissal. 

It is critical that employers correctly identify what are the inherent requirements of a job. These should be based very clearly on what is required to meet the requirements of the job. Requirements should not be based on any potentially discriminatory criteria, such as religious belief. An issue arises when a requirement of the religion, such as growing a beard is potentially in conflict with a company rule requiring employees to be clean-shaven. This week Ivan Israelstam explains further how such apparent conflicts are judged.

Ivan Israelstam

The South African Constitution and the Employment Equity Act are very clear on the grounds that may give rise to unfair discrimination. Not all discrimination is unfair. Employers constantly make choices, for example: on who to appoint, who to promote, who qualifies for a company car, and many similar decisions. It is the fairness and objective grounds upon which the decisions are based that matters. Ivan Israelstam explains further what is required of an employer.

Human resource practitioners will be aware of the saying that one employs for qualifications and dismisses for behaviour. Individuals who have been model employees may suddenly start behaving in uncharacteristic ways, brought on by personal relationship problems, trauma, or forms of physical or mental illness. No matter how frustrating the behaviour may be for the employer Ivan Israelstam explains why it is critical that employers behave correctly.

Not all discrimination is unfair. Choosing one employee from a group of applicants is making a discriminating choice between the applicants. As long as there is a valid reason for the choice, for example: in line with an employment equity plan, or on objective qualification requirements, the choice will not be unfair. However, if the decision is not made upon objective grounds, and a court makes a finding of unfair discrimination against your company, this can potentially have serious implications. Ivan Israelstam explains how this may happen and the financial consequences of such a finding.

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