Employment equity was over before it began. Those employers who were serious about employment equity started years ago, many as early as 1984. Others waited for Employment Equity legislation. That is as far as it goes. While some employers were taking their corporate citizenship seriously, others, probably a majority of them, were not.
Instead they hired slippery lawyers and devious human resource bosses to find ways of killing the legislation. Their success can be measured by the lack of progress in many companies and the pale tan in most boardrooms.
Justice system too slowHow was it done? The loopholes do not exist in the legislation, they lie in the justice system and its application or rather lack of application. Employment equity issues lie squarely in the domain of the Labour Court, which appears to work on the principle “Justice delayed is justice denied”.
If an employee complains, the requirement is to take the issue to the CCMA for conciliation. That will certainly fail. The next step is to file the case in the Labour Court, a court date can take anything from three to nine months. In court an adjournment will be asked for and given. If you are lucky it will take another six months to come before the court again. At that hearing you may be lucky to complete the case. The employers confound you by throwing in any number of irrelevant witnesses and perambulatory advocates to waste time and force another adjournment.
Another six months and maybe the case will be over, except that the judgement will take as much as six months to be handed down. If it is in your favour, the employer will appeal. If you think the Labour Court took its time, it is nothing compared to the Labour Appeal Court, and beyond that the Constitutional Court could also be involved. Yes, you may win, but only after four, five or six years. During those four, five or six years what has happened? Your career is dust, you may or may not be harassed and victimised, but subtle means will be applied just to let everyone know what happens to those who complain. Once the complaining has stopped, as it will, the employer no longer has to comply with Employment Equity.
EE reports don’t tell the full storyHow about those reports to the Department of Manpower? Falsification is illegal but there is much opportunity for ambiguity and deception and even non-reporting. Sometimes the employers will pay fines in the millions, which may actually be cheaper than equalising wages. Sometimes they do not as they have not been caught yet. Employers also sell government and unions a dummy by threatening to pull out of South Africa if the unions get too vociferous. Everyone backs off and the unfortunate employee who complained is left to contemplate on just what went wrong.
Employment Equity, for those who do not receive it, is dead. Can we bring it back to life? We have to believe we can.
What is to be done?The Unions must encourage all aggrieved employees to submit complaints so that the employer is overwhelmed and must report those claims in reports to the Department of Manpower but also in Annual Reports. The unions must pressure for change to the Equity Act, which will put the CEO and his fellow Directors behind bars for non-compliance.
Those employers who evade the implementation of employment equity, need to realise that apartheid recidivists are not going to wake up and find they are dreaming. Equity law is there to accelerate the inescapable and whatever obstacle employers put in the way. The Equity Train will reach its destination with or without them!