CHAPTER 3: LITERATURE REVIEW: DIFFERENT TREATMENT OF EMPLOYEES
3.3 South African perspective on treating employees differently
This part focuses on the South African perspective of treating employees differently. The discussion of this aspect is in line with the objectives of this study.
The new democratic dispensation in South Africa brought about a number of changes in a number of sectors. This included the repeal of legislation that existed during the apartheid era, the enactment of new laws, and making amendments to certain precepts of legislation was the priority after South Africa attained democracy (South African History Online, 2017).
Some of these new pieces of legislation include, but are not limited to the following: the Basic Conditions of Employment Act No 75 of 1997 (South Africa 1997), (BCEA), the Labour Relations Act (LRA) No 66 of 1995 (South Africa 1995), and the Employment Equity Act No 55 of 1998 (South Africa 1998), (EEA).
These laws replaced or repealed previously promulgated laws that purposely intended to give one group of people the advantage over the other (South African History Online, 2017), hence these new laws intends to address past injustices in the workplace.
These laws, the BCEA, the LRA and the EEA affirmed the question of treating employees differently, especially in terms of recruitment and selection processes and to a greater extent the remuneration and benefits paid to employees. However, any “positive discrimination”
should be within the realm of the South Africa’s applicable legislation (South Africa.
Department of Labour, 2017).
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There is fair discrimination, for example, when an organisation intends to comply with employment equity by recruiting a particular category of employees. That is why, when certain jobs are advertised, organisations normally specify which categories of employees they are targeting, or which employees are encouraged to apply.
Yet, many organisations have not applied these laws correctly as far as revealing their intended objectives (South Africa. Department of Labour, 2017).Sometimes the use of these Acts is just a lip service and other employers hide behind them to perpetuate prejudiced practices against certain categories of employee (South African History Online, 2017).
The application of HRM policies should be in line with applicable legislation under all circumstances. However, in most instances employees lodge complaints when aggrieved by the unfair application of these laws in the workplace (South Africa. Department of Labour, 2017; Wayne and Casper, 2012).Although some employees have been successful in having decisions taken against them overturned, especially in the recruitment process, but it is not always the case with others.
However, if an employee decides to file a formal complaint the employee must prove that the application of policies was not fair. The employee must furthermore demonstrate that the job was the same as or different from that of other employees; that there was no rational basis for this difference in treatment, and that the difference in treatment affected his or her income or chances for advancement (Scott, 2016; South Africa. Department of Labour, 2017).
Often than not where employees claimed that they were treated differently or to some degree prejudicially, the organisation was brought before the Commission for Conciliation, Mediation and Arbitration (CCMA), and sometimes the case was sent to the Labour Court.
One recent case in Harris (2010), when an employee had lodged a complaint with the CCMA for being compensated less than some of his colleagues, whose job functions were more or less the same. The order or the verdict was against the employer, with costs.
Despite the fact that an organisation will always have employees who are not satisfied, who are disengaged, or less motivated or committed for various reasons, employers expose themselves to various forms of litigation when they treat their employees differently without legally justifiable grounds.
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Another important way in which treatment of employees is differential is in respect of remuneration. The aspect of remuneration has already presented a number of organisations with challenges. In that, employers were not ready for the changes, concerning their policies’
application in the new democratic dispensation (IT-Online, 2016).
Therefore, in some instances remuneration of employees is differently in line with discriminatory measures, such as the pigmentation of their skin (IT-Online, 2016). Note, though, that organisations may pay employees differently based on factors such as skill, performance, length of service, competencies or flexibility, qualifications, seniority, responsibility, and a number of other factors as alluded to above (Scott, 2016).
In this regard, Acts such as the BCEA, the LRA and the EEA provide that employers must take into consideration the conditions under which the work is performed, which include physical and psychological conditions as well as geographic location (Business Tech, 2016).
In the LRA, for example, there is a list of factors with regard to determining or justifying different remuneration for different employees. These factors include, but are not limited to the following:
the individuals’ seniority or duration of service;
the individuals’ qualifications, skills, and their potential above the minimum acceptable levels required for the job;
the individuals’ performance, which includes both the quality and quantity of their work, subject to the condition that the employer’s performance evaluation system applies equally to all employees and that no discrimination takes place during grading;
where an employee is demoted due to company restructuring (or for another legitimate reason) without a reduction in remuneration (and the employee’s salary is fixed at the current level until the other employees in the same job category reach the same level);
where an individual is employed temporarily in a position in order to gain on-the-job experience or training, and is subject to different employment terms and conditions compared to full-time employees;
It is nevertheless important to note that treating employees differently for whatever reason will inevitably affect employees, which might lead to low employee morale, low motivation, satisfaction, and poor employer-employee relations, to name but a few. Employees will feel undervalued which, in turn, could lead to high turnover rates (Blake, 2017).
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Challenges resulting from treating employees differently are not only associated with one sector, but also are also prevalent in both the public and private sectors. However, the public sector is the most affected sector insofar as turnover intention rates, low levels of satisfaction and engagement are concerned (Blake, 2017; Bratton and Gold, 2012; Business Tech, 2016;
Scott, 2016).
Furthermore, it should be emphasised that there are different views about the concept of treating employees differently. As a result, there is no common ground about how the application of this concept is in practice. Hence, a number of organisations battle to grasp this concept, and in their attempts to apply it, they falter.
Failure by organisations to apply labour laws correctly will have unintended consequences.
That is why many organisations have a transformation unit or department (Blake, 2017;
Bratton and Gold, 2012). This transformation unit, its function is to ensure that the organisation complies with applicable labour laws such as EEA.