While companies try recruit, select and appoint people they feel are capable, committed and will 'fit in', there are still situations when they've somehow hired someone who's not the right person for the job.
But you can use an affirmative action policy when hiring and promoting people. As a bonus, if anyone takes you to the CCMA for unfair discrimination you can prove you were within your rights to follow your policy.
This applies for designated employers which refer to companies that have 50 or more employees or an annual turnover that equals or is more than the amounts for certain sectors.
What constitutes affirmative action?
These are measures designed to ensure that suitably qualified people from the designated groups are equitably represented in all the levels and categories of employment of a designated employer.
However, notice that you can't just hire the black candidate for the sake of it. You must make sure you're doing it in line with your affirmative action plan and the candidate has the skill, or you have a plan to skill them up.
What is included in the term?
Affirmative action measures include the following:
• Measures to identify and eliminate employment barriers, which include unfair discrimination, which adversely affect people from designated groups.
• Measures designed to promote diversity in the workplace based on equal dignity and respect of all people.
• Making reasonable accommodation for people from designated groups to ensure they enjoy equal opportunities and are equitably represented in the workforce of the designated employer.
• Giving preferential treatment to people from designated groups to ensure the equitable representation of suitably qualified people from the designated groups in all the occupational categories and levels in the workforce.
• Retaining and developing people from the designated groups and to implement appropriate training measures.
• Promoting skills development in line with the relevant legislation.
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Who can benefit from affirmative action?
Only those from designated groups.
Definition: Designated Groups (also called Historically Disadvantaged Groups) Black People (Africans, Coloureds and Indians), all women (including white women), and all people with disabilities (from both designated and non-designated groups) who are natural persons and who:
• Are citizens of the Republic of South Africa by birth or descent; or
• Were citizens of the Republic of South Africa by naturalisation before the first election on 27 April 1994; or
• Became citizens of the Republic of South Africa after the 27 April 1994, but who, if it weren't for the Apartheid policy previously in place prior to that date, would've been entitled to acquire
citizenship by naturalisation prior to that date.
NOTE: This means that African, Coloured or Indian people who came to South Africa after 1994 aren't designated groups.
Is there a right to affirmative action?
Affirmative action isn't a right in our law. A 'designated' person can't demand appointment over a white male with a better qualification. Rather, it's a defense you can use if it you're accused of discrimination by a non-designated person who you didn't hire because of his colour. For example, a white male.
You can only use this though if you have an affirmative action plan in place.