Employment Equity Commissioner (EEC) Vilbard Usiku has described as illegal a practice by some companies to demand the mastery of Afrikaans as a priority language for getting a job.
In most cases in Namibia, some companies make it a prerequisite that any candidate applying for a job will have advantages ahead of other candidates who are only fluent in the English language.
Usiku said according to the Affirmative Action Employment’s Act of 1998, employers who engage in such practices promote discrimination against a designated group.
“It is against the law for any employer operating within the boundaries of this country to impose any form of discriminatory requirement restricting some Namibians from the opportunity to apply for a particular job”, he stated.
He further noted that the Namibian Labour Act of 1992 deals with unfair discrimination or harassment in employment, adding that it cites discrimination regarding sex, race, colour, ethnic origin, religion, creed, social or economic status, political opinion or marital status or sexual orientation, family responsibilities or disabilities as things to avoid.
“The section provides that upon an application made to the Labour Court regarding discrimination, the Labour Court may issue an order in terms of which such person is ordered to discontinue any such acts as may be specified in such order; to refrain from performing any act specified in such order; to discontinue any such publication or display, or to refrain from publishing or displaying any such advertisements or notice; as well as to make any such order as the circumstances may require”, he explained.
Usiku said the revised edition of the Employers’ Guidelines to the Affirmative Action Employment Act represents a further milestone on the path towards creating an equitable, balanced and productive employment regime in Namibia.
“Commendable progress has already been achieved in implementing the provisions of the Act in the relatively short time of its existence. Most relevant employers have given their willing cooperation in complying with the statutory requirements”, he said.
Furthermore, Usiku felt that despite the amendments to the Act, the majority of Affirmative Action (AA) reports submitted to the Employment Equity Commission over the past two years have contained various shortcomings, often reflecting a lack of understanding of certain aspects of the Act and their practical application.
Labour expert Herbert Jauch explained that disadvantages in employment experienced by persons in designated groups rose from past discriminatory laws and practices.
The Affirmative Action Act was amended to comprise procedures to contribute towards the elimination of discrimination in employment, and to provide for matters incidental thereto.
“The Act protects all those who are subjected to any form of discrimination, and redresses inequities in employment aimed at bringing about equal opportunity in employment in accordance with the Namibian constitution. However, it is hard to hold employers accountable if employees do not report acts of discrimination”, he stated.
According to international labour laws, the affirmative action policy has gained international acceptance as a legitimate vehicle to promote social justice, whilst enhancing the more efficient use of human resources.
Apart from the United States of America (USA), it has been widely implemented in countries as diverse as Sri Lanka, Malaysia, Australia, Zimbabwe and South Africa. Even so, human nature being what it is, affirmative action has not existed without controversy and mixed results.
Meanwhile, according to the summarised guide to the Affirmative Action (Employment) Act (Act 29 of 1998) published by the Namibia Institute for Democracy (NiD), affirmative action programmes are needed to raise the socio-economic level of groups subjected to long-standing patterns of discrimination.
The report said in the USA, some of the issues involved gained heightened public attention in several Supreme Court rulings. Significantly, the court upheld the legality of affirmative action programmes, but put limitations on how and when they could be applied.
Whilst in most cases disallowing the use of rigid quotas, the use of goals and timetables was ruled permissible. And whereas affirmative action favouring the employment of previously disadvantaged groups was declared legal, programmes which entail the outright dismissal of employees in order to make place for members of privileged groups were judged unlawful.
Affirmative action does not stem from prejudice against a particular societal group, nor is it intended to stigmatise its members.
The report further states that the policy helps to redress generations of lost opportunities for such groups, but quite apart from moral considerations, on a purely pragmatic level, affirmative action makes through its methodical investment in under-utilized human resources’ potential some excellent business sense.
In addition, it helps to unlock the latent capacity of enterprises which have heretofore been restricted through prejudicial policies and practices, whether intentional or not.
The report also highlighted that the challenge of affirmative action in developing countries is compounded by the lack of resources and societal structural impediments, adding that needy African and Asian countries are usually faced with the upliftment of a large majority of the population, which means they face a double challenge, and given the structural nature of the dilemma, affirmative action in employment constitutes only a part, albeit an important part, of the solution.
For whereas the principles of affirmative action are universal, wealthy industrialized nations such as the USA and Australia need to concentrate on a relatively small proportion of the workforce only.
The report also states that it is important for both employers and employees to be responsive to the fact that most innovative human resources-related programmes contain sensitive elements, which require that ownership of their aims should, as far as possible, vest in all those affected.
by Hileni Heita