Onbillike diskriminasie by die aanstelling van regstellende aksie kandidate vanuit die verskeie aangewese groepe

Abstract

Unfair discrimination is still a general phenomenon in the workplace, regardless of the fact that South Africa has moved into a democratic dispensation. In South Africa there is a strict embargo on discrimination and the equality of all races is striven for at all costs. The Constitution of the Republic of South Africa, 1996 and the Equal Employment Act 55 of 1998 also contain stipulations that prohibit discrimination, whether direct or indirect and these stipulations also strive to promote and effect equality in the workplace. The implementation of affirmative action measures can give rise to unfair discrimination. In cases where members of the designated groups compete with each other for the same position, there can be allegations of unfair discrimination. In Solidariteit OBO Christiaans v Eskom (2006) 27 ILJ (ARB) clear guidelines were laid down about how such cases should be approached in order to deal with unfair discrimination or any allegations to that effect. Regardless of the guidelines provided the question still arises as to how the designated employer has to act in order to avoid unfair discrimination in cases where more than one person from the designated group should apply for the same position. In two more recent judgments attention was not given to the above guidelines and this gave rise to greater uncertainty in terms of the law. That uncertainty has given rise to the need for a study of the relevant legislation, judgment and literature. The purpose of this study was therefore to determine how the designated employer can avoid unfair discrimination in the implementation of the affirmative action measures aimed at “black people” mutually.