By: Thuo Ditsele (HR Consultant) and Tumisang Bagidi (Lead HR Consultant)
The principle that parents are shunned when their children misbehave is more global than cultural. It also applies in the workplace in the sense that employers are held liable for the culture that exists in the workplace. The said culture is commonly known as organisational culture. These are behaviours, values and attitudes that exist in the workplace. The above-mentioned concept comes from the fact that the employer determines what is acceptable and what is not, as well as how things are to be done, directly translating to culture. Some elements of the organisational culture are supported and encouraged by the law, whilst on some it is very silent. One element of this nature is discrimination, and the labour law strongly discourages the negative forms of this. The Employment and Labour Relations Act clearly places itself ahead of the rest by also holding employers accountable for condoning acts of unlawful discrimination in their workplaces.
The Law
According to section 18(1) of the Employment and Labour Relations Act, direct or indirect discrimination in relation to the following is discouraged: “race, sexual orientation, tribe or place of origin, national extraction, social origin and maternity, pregnancy, marital status, paternity, religion, disability, political affiliation or opinion, and health status.” This type of discrimination is regarded as unlawful or unfair. Section 17(a) encourages employers to actively work alongside workers and workers’ representatives to eliminate discrimination and promote equal opportunity. The Employment Act that we all know too well briefly touched on discrimination, but that is not to say other sources of labour law did the same. The Codes of Good Practice, Model Procedures and Agreements, on the other hand, did the exact opposite. However, it is no secret that not everyone has access to or knowledge of such a source of law.
Lawful Discrimination
The term discrimination is normally associated with something bad or negative; however, the Employment and Labour Relations Act prove this theory otherwise. It sheds light on the fact that there is lawful discrimination; this is highlighted under section 18(2) and it reads “it shall be lawful to distinguish, exclude or prefer any person in respect of a particular job based on the narrowly defined inherent requirements of the job or take lawful measures, including reasonable accommodation designed to meet the particular requirements of a person who, for reasons including sex, age, disability, pregnancy, maternity, family responsibilities or social or cultural status, requires special protection or assistance.” This segment takes us to the topic at hand, which is the repercussions of condoning unlawful discrimination. Read on!
The Liability
Section 19(1-2) of the above-mentioned Act states that “an employer shall be liable for the conduct of a worker in contravention of this Part unless the employer is able to prove that such employer did all that was reasonably practicable to ensure that the worker would not act in contravention of this Part. Any unfair discrimination against a worker in contravention of this Part shall constitute an unfair labour practice.” This section firstly highlights the fact that there is no way of divorcing a worker’s actions from the employer. If a worker oversteps and is not punished, then it means the employer condones such actions. Now, if that goes against workers’ rights, then the employer would have committed an offence punishable by law. The liability in this case would be a fine not exceeding P50,000 or imprisonment for a term not exceeding five years or both.
Conclusion
As with many other things, prevention is better than cure. We encourage employers to not only develop policies and promote practices that discourage discrimination but also walk the talk. Any worker who goes against this is to be held accountable without any fear or favour; employers would run the risk of paying the above-mentioned price.
Contacts
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Gaborone: +267 75 546 784, +267 393 9435 or info@aupracontax.co.bw
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