Implementers and Trainers of Employment Equity Act

A question for you to ponder

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    Des Squire

    Discrimination is illegal and is prohibited in any form in terms of the EE Act.

    Would a company then be discriminating when they advertise for vacant positions, or when thy promote based on minimum educational requirements???

    Give this some thought and plese explain yuor responses.

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    sylvia hammond

    Hi Des,
    Thank you for posting this question. It is very interesting.

    If a company requires a certain level of qualification – such as a matric, the question is – who are the people who are most likely to be excluded by that standard?

    There is no question that it would be those people, who previously received the most poorly funded education – and still suffer from poor quality of schools and education.

    So it would be necessary to demonstrate why exactly the company feels that it needs that level of qualification. And secondly, do they have current employees, who are at a lower level? Are they offering AET or FLC training?

    This is exactly the situation SAB found themselves in when they tried to retrench workers, who had worked for them for years, loyally, and quite successfully. SAB claimed that it was necessary for their World Class Manufacturing initiative.
    There is a very long court case history on the dispute lodged by FAWU members as I recall. I do have it saved somewhere if you are interested.

    Personally, although I would always advise employers to offer the training to get all employees to that as a minimum level, I do have experience of this challenge – one particular employee comes to mind – he was the champion operator on his machine – without literacy.

    So I would also always caution employers to be able to identify why exactly they think the qualification is necessary – that it genuinely is an inherent requirement of the job.

    Des Squire

    I agree Sulvia, It comes down to ability to do the job (having the correct comptencies) and not the education. It is for this reason that companies are required to review all policies and procedures. The recruiting, selection or promotion policy needs to cover this aspect and remove the education barrier.

    How many companies have done this I wonder??

    • This reply was modified 3 months, 1 week ago by Des Squire.
    sylvia hammond

    Des, My opinion is that unfortunately we have another one of those situations, where there is more than one answer.

    Regarding formal qualifications:
    * on the one hand, I fully support the drive to allow people to acquire accredited portable qualifications, that is part of redress for those who were excluded from acquiring formal qualifications. In the past people were trained by a company, but the training was simply for the company with no status for the employee to use when they wanted to move on to another company.
    (but like an economist)
    * on the other hand, where someone has significance experience and demonstrated competence, why should they be held back from advancing?
    In that situation they should be offered RPL, & the necessary training to possibly achieve a formal qualification.
    (Although I know that many adults don’t want to go back to studying. Unfortunately, many see it as going back to school – rather than adult learning and re-learning.)

    In terms of the Employment Equity Act as you know, there are also the very good definition clauses:

    “20 (3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any of, or any combination of that persons’s
    (a) formal qualifications;
    (b) prior learning;
    (c) relevant experience; or
    (d) capacity to acquire, within a reasonable time, the ability to do the job.

    (4) When determining whether a person is suitably qualified for a job, an employer must-
    (a) review all the factors listed in subsection (3); and
    (b) determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.”

    And then the opposite side where there is no experience.
    “(5) In making a determination under subsection (4), an employer may not unfairly discriminate against a person solely on the grounds of that person’s lack of relevant experience.”

    One additional thing to keep in mind when talking about a “job”, employers tend to put tasks and roles together in different combinations. So In the EE Act analysis where companies are required to review their policies & procedures – as you mention – there could be a particular aspect of a “job” that is keeping people out, who could otherwise fulfill the role.
    e.g. making a qualification like matric a requirement – when the job does not have any admin functions, or any functions that would require that level of reading and writing.

    Des Squire

    With you 100% Sylvia. Regarding the task and roles as you mention I find the OFO’s are of great assistance in ensuring some form of standardisation. So in reality the Act and particularly section 20 (3) as you have outlined it, must be used as the guide and if the job profiles have been reviewed and the OFO’s incorporated we have a very strong working basis to follow.
    This gude should be used for recruiting, selection, promotion and career progression purposes.
    Problem of course is that comanies are shying away from this.

    (Can you perhaps add your respnse above to my question on linkedin also or can i copy and paste for you?)

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