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When Counsel for the applicants in the Labour Court re-examined Mr Joubert, he did not revisit this concession made by Mr Joubert. Therefore, the determination of the question whether the targets were rigid or not must not disregard this concession, as does the second judgment, but must take it into account. |
The second judgment also deals with the matter as if deviations were permitted only in the case of scarce skills. It overlooks the fact that deviations could also be made where the “operational requirements” of the Department justified a deviation. That simply related to the needs of the Department. That ground for de... |
The fact that only the Commissioner could authorise deviations does not itself turn a flexible target into a rigid target. In an organisation as big as the Department, it is necessary to take steps to avoid inconsistencies that may occur in the authorisation of deviations when there are too many people with power to a... |
There was also nothing wrong with the provision in the 2010 EE Plan that managers who did not implement the Plan would be sanctioned. Section 24(1)(c) of the EE Act contemplates that. Section 24(1)(a) places an obligation on a designated employer to assign one or more senior managers to take responsibility for monitor... |
Managers are employees. An employer is entitled to indicate to an employee that, if he or she fails to perform his or her duties or functions properly, disciplinary steps may be taken against him or her. There is no reason why a provision in an employment equity plan to the effect that managers who fail to perform the... |
Finally, it also needs to be highlighted that at the trial the applicants’ case did not include showing that the Commissioner had failed to properly exercise her discretion to authorise deviations in the case of any of the individual applicants. I, therefore, conclude that the applicants have failed to show that the t... |
The applicants contend that the Department’s decisions to refuse to appoint the individual applicants on the basis of their race or gender constituted unfair discrimination which is prohibited by section 6(1) of the EE Act. In this regard it will be recalled that the Department’s reason for not appointing the individu... |
“(1) Every designated employer must, in order to achieve employment equity, implement affirmative action measures for people from designated groups in terms of this Act. |
(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer. |
(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development. |
(3) The measures referred to in subsection (2)(d) include preferential treatment and numerical goals, but exclude quotas. |
(1) A designated employer must collect information and conduct an analysis, as prescribed, of its employment policies, practices, procedures and the working environment, in order to identify employment barriers which adversely affect people from designated groups. |
“(1) A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce. |
Subsequently, this provision was amended by the replacement of the word “must” in the introductory part of subsection (1) with the word “may”. Accordingly, this matter must be determined on the basis of how this provision read before amendment. |
Section 42 applies when the Director-General or any person or body applying the EE Act seeks to determine “whether a designated employer is implementing employment equity in compliance with [the EE Act]. . .”. It is to be noted that this provision does not directly refer to the implementation of an employment equity p... |
Section 42(a) must be read with other sections of the EE Act including sections 13, 15, 19, 20 – all of which I have already quoted. Section 13 deals with the “[d]uties of designated employers”. I draw attention to section 13(2)(b) and (d). Paragraph (b) obliges a designated employer “to conduct an analysis as require... |
Section 42 is about determining whether a designated employer is implementing employment equity in accordance with the EE Act. It provides for the factors that, before its amendment, anyone applying the EE Act to make that determination was obliged to take into account. Before amendment, section 42 said that the facto... |
One of the factors that section 42 required to be taken into account in determining whether a designated employer was implementing employment equity in compliance with the EE Act was the extent to which suitably qualified people from and amongst the different designated groups were equitably represented within each oc... |
This means that the analysis provided for in section 19 is used to determine whether suitably qualified people from the different designated groups are equitably represented within all occupational levels in a designated employer’s workforce. |
Section 20(2)(c) must also be read with section 19. This is because section 20(2)(c) refers to underrepresentation “identified by the analysis”. The reference to “the analysis” can only be a reference to the analysis referred to in section 19. It, therefore, seems logical that the extent of the representation of suita... |
This means that the numerical targets or goals in an employment equity plan must be based on the level of underrepresentation that has been identified using the section 19 analysis. |
Going back to section 42(a), it seems to me that, if a designated employer uses a wrong basis to determine the level of representation of suitably qualified people from and amongst the different designated groups, the numerical goals or targets that it may set for itself to achieve within a given period would be wrong... |
In failing to use the demographic profile of both the national and regional economically active population to set the numerical targets, the Department acted in breach of its obligation in terms of section 42(a) and, thus, unlawfully. It had no power to disregard the requirement of also taking into account the demogra... |
The effect of the above conclusion is that, when the Department refused to appoint the Coloured and female individual applicants on the basis that they belonged to groups that were already overrepresented within the occupational levels to which they wanted to be appointed, the overrepresentation of those groups had be... |
One cannot “prove, on a balance of probabilities”, that anything is “rational and not unfair or is otherwise justifiable”, because it is only a fact that can be proved. Whether conduct is rational or fair or justifiable is not a question of fact but a value judgment. I shall take section 11(1)(b) to require that the e... |
The next question is what remedy, if any, should be granted to the individual applicants. The applicants contended that the Department’s 2010 EE Plan should be declared invalid and set aside. That plan was for the period 2010-2014. It is no longer in use. Many decisions may have been made while it was in use. It does ... |
The applicants’ real complaints were based on the Department’s refusal to appoint the individual applicants to the relevant posts. Those decisions should be set aside. That should afford the applicants effective relief. In this Court the applicants sought to make the invalidation of the 2010 EE Plan a big issue. Howev... |
In a case such as this, section 50(2) of the EE Act gives the Labour Court the power to make “any appropriate order that is just and equitable in the circumstances” including an order for the payment of compensation. As we are dealing with an appeal from the Labour Appeal Court which had heard an appeal from the Labou... |
With regard to further orders, it is necessary to distinguish between those individual applicants who had applied for appointment to posts that remain unfilled to this day and those that were filled. The applicants’ Counsel asked the Court to make this distinction in dealing with the remedy. This must have been based ... |
Except for one Coloured individual applicant, namely, Mr AJ Jonkers, all the Coloured individual applicants were recommended for appointment. Mr AJ Jonkers was not recommended for appointment. Ms LJ Fortuin was recommended but initially denied appointment. However, later she was appointed to the post she had wanted. T... |
What about the individual applicants who had applied for posts that were subsequently filled? Counsel for the applicants submitted that they should be granted “protective promotion”. However, Counsel did not furnish this Court with any legislative instrument providing for “protective promotion”. As I understand it, th... |
What matters the most in regard to the power of the Court under section 50(2) is that the remedy or order it makes must be one that is appropriate as well as just and equitable. The respondents did not contend that, if this Court held that the individual applicants had been unfairly discriminated against, the so-calle... |
Considerations of justice and equity dictate that the individual applicants concerned should be paid remuneration applicable to the posts to which they were unfairly denied appointment. The payment of this remuneration must be with effect from the date with effect from which they would have been appointed to the posts... |
(c) they must also be accorded benefits attached to the posts in which they sought appointment but were not appointed. |
The finding that the Department’s decision not to appoint the individual applicants to the posts to which they had applied for appointment does not apply to three of the individual applicants, namely Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin. In respect of Mr Davids, the reason is that he is a White person and whi... |
With regard to costs, as this is a labour matter I propose not to make any costs order. |
Solidarity and Others v Department of Correctional Services and Others ZALAC 6; 2015 (4) SA 277. |
As to what an employment equity plan is, see section 20 of the Employment Equity Act 55 of 1998. Section 20 is quoted in of this judgment. |
As summarised in para 3 of the Labour Court judgment above n 6. |
See section 42 in below. |
See Solidarity and Others v Department of Correctional Services and Others ZALCCT 38; 1 BLLR 76 at para 45. |
See para below for Section 9(2). |
Labour Court judgment above n 7 at paras 45-6. |
South African Police Service v Solidarity obo Barnard ZACC 23; 2014 (6) SA 123 (CC); 2014 (10) BCLR 1195 (CC). (Barnard). |
Id at paras 50.3 and 50.4. |
Minister of Finance and Another v Van Heerden ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC). |
Labour Appeal Court judgment above n 1 at para 37. |
Labour Appeal Court judgment above n 1 at para 51. |
Barnard above n 12 at para 62. |
Motala and Another v University of Natal 1995 (3) BCLR 374 (D) at 383B-E. |
Explanatory Memorandum to the Employment Equity Bill, GN 1840 of 1997, GG 18481.5, 1 December 1997. |
Media Workers Association of SA & Others v Press Corporation of SA Ltd 1992 (4) SA 791 (A); (1992) 13 ILJ 1391 (A) at 1397H-1398B. |
Novel biomarker discovered may help create a diagnostic tool for hypoglycemia-associated autonomic failure (HAAF) as no accurate diagnostic tool exists for this condition, reports a new study. If the disease is not treated, it could lead to possible life-threatening episodes of dangerously low blood sugar. The findings... |
Low blood sugar, or hypoglycemia, is a significant complication of type 1 and type 2 diabetes. People with diabetes can have difficulty self-administering the exact insulin dose at the correct time to keep blood sugar levels in healthy ranges. |
If a low blood sugar episode occurs, individuals usually begin to feel a range of symptoms such as dizziness, headaches, and nausea that trigger them to seek immediate, potentially life-saving, medical care. |
But when people with diabetes have too many hypoglycemic episodes, their senses may become blunted. They may stop experiencing the physical symptoms that serve as cues to seek medical attention. They may not even realize they are having one or multiple hypoglycemic episodes until it is too late. This condition is more ... |
"There is currently no objective way for a health care provider to measure whether a patient has experienced repeated episodes of low blood sugar and therefore may be suffering from HAAF," said David McDougal, Ph.D., assistant professor-research and head of Pennington Biomedical's Neurobiology of Metabolic Dysfunction ... |
LSU Pennington Biomedical researchers set out to discover ways that biomedical imaging might be able to offer new solutions as to how to measure exposure to glucose level crashes. They decided to focus not on glucose uptake in the brain directly, but on how the brain adapts following an episode of low glucose levels. |
Blood glucose is the brain's essential metabolic fuel. If glucose isn't available because a person has hypoglycemia, the brain can adapt by increasing the rate at which it uses alternative energy sources, such as acetate. |
"The results of our study suggest that this adaptation may still be present after exposure to times of low blood sugar and therefore can be used to measure how frequently a person experiences low blood sugar," McDougal said. "We believe that by measuring how well a person's brain uses acetate, we might one day be able ... |
This would allow doctors to provide treatment for reducing this risk by changing the medication the person takes or advising them to use a continuous glucose monitoring device, McDougal said. |
The research significantly advances our understanding of the scope and importance of the relationship between brain metabolism and hypoglycemia, McDougal said. |
However, he cautions that "more studies will have to be conducted to demonstrate if this biomarker can be of practical clinical use." |
McDougal has filed a provisional patent application for his discovery. |
AT&T, Comcast, TWC, Verizon join to oppose common carrier rules. |
Think you hate your Internet service provider now? Pretty much all the top ISPs in the country just told the Federal Communications Commission that if they face extra regulation, they will stop investing as much as they do today in network upgrades, and they will have to stop being so innovative. |
The threat came today in a letter signed by the chief executives of AT&T, Bright House Networks, Cablevision, CenturyLink, Charter, Comcast, Cox, Frontier, Suddenlink, Time Warner Cable, 15 other companies, and industry groups such as the National Cable & Telecommunications Association, the Telecommunications Industry ... |
The companies warned the FCC not to classify broadband as a telecommunications service, which would open Internet service up to stricter “common carrier” rules under Title II of the Communications Act. The US has long applied common carrier status to the telephone network, providing justification for universal service ... |
Consumer advocates say common carrier status is needed for the FCC to impose strong network neutrality rules on Internet service providers. Such rules would force ISPs to treat all third-party Web services equally, not degrading competing services or speeding up Web services in exchange for payment. |
Not surprisingly, that's the last thing ISPs want. |
ISPs have continually touted their investment in broadband infrastructure, although Vox pointed to the cable industry's own data today to show that investment has actually decreased. |
Verizon, meanwhile, has slowed down its FiOS investments and led an astroturf campaign in New Jersey to end an obligation to build out broadband service to all residents. |
Nonetheless, the ISPs' letter claimed that only the status quo, aka a “stable regulatory framework,” can “promote future investment, innovation, and consumer choice." |
This alarmist warning comes days after AT&T claimed that common carrier rules would basically ruin the whole Internet for US customers. Consumer advocacy groups arguing on behalf of Title II have dismissed these arguments, saying AT&T falsely claimed that the FCC has no discretion in how to deploy common carrier rules.... |
FCC Chairman Tom Wheeler has so far resisted calls to classify broadband as a Title II service, but in the face of widespread protest decided to ask the public to weigh in on whether the FCC should issue common carrier rules on Internet service. |
A James Brown tribute night and DC Lit at U Street Music Hall. |
Celebrate James Brown's birthday on Thursday. Photograph by miqu77 / Shutterstock.com. |
of music. Free. 7 PM. |
burnt, and deejays all night. Free with RSVP or $15 at the door. 8 PM. |
a wild ride. Tickets ($15) are available online. 8 PM. |
feel good. So good. $5. 8 PM. |
Select up to 3 trims below to compare some key specs and options for the 2012 Toyota Yaris. For full details such as dimensions, cargo capacity, suspension, colors, and brakes, click on a specific Yaris trim. |
Calculate 2012 Toyota Yaris Monthly Payment Which Cars You Can Afford? |
According to a report by the Virginia Pilot, Vice Admiral Van Buskirk, Chief of Naval Personnel, said that the Navy does not plan to suspend tuition assistance for its active duty sailors. This news comes as a relief to the nearly 45,000 Navy personnel who currently use their TA benefits, especially following the suspe... |
Van Buskirk made the impromptu announcement during a Q and A session at Joint Expeditionary Base Little Creek. However, Military.com's Richard Sisk was told by a Navy spokesmen in Van Buskirk's office, that no decisions have been made yet and the future of TA was being gauged against the budgetary constraints imposed b... |
Van Buskirk said the Navy’s cost for operating program was much smaller than the other services, which could enable them to maintain the program through the sequestration cuts. By comparison the Navy spends about $85 million on tuition assistance for 45,000 sailors, while the Army’s TA program costs over $300 million. |
Over the last several years the Navy has implemented eligibility limitations, reduced the number of courses (credit hours) a sailor can take, and implemented pre-enrollment requirements such as a TA online prep-course. These policies have helped the Navy control the cost and ensure that those who take advantage of TA a... |
The Virginia Pilot article also reported that Van Buskirk indicated that the Navy may reduce the tuition assistance benefit by 25 percent in fiscal year 2014, effectively returning to the 75 percent payment rates that were in effect until 2002. |
The Navy currently pays 100 percent tuition assistance up to $250 per Semester Credit Hour not to exceed 16 Semester Hours ($4,000) per Fiscal Year. A 25 percent reduction in tuition payments would mean the Navy would only cover a maximum of $187.50 per credit hour, which means $62.50 per class or as much as $1000 (pos... |
As a reminder to those facing the possible TA roll-back, there is a little known program called Tuition Assistance "Top-Up" which helps servicemembers cover the out-of-pocket costs by applying a portion of their GI Bill benefits toward the cost of classes. This program was originally created in 2000, but has been rarel... |
If enrolled in the Montgomery GI Bill the entitlement is charged based on the dollar amount of benefits VA pays (not the training time). The entitlement will be charged one month for each payment made by the VA that is equal to the full time monthly rate for the GI Bill. |
If enrolled in the Post-9/11 GI Bill the entitlement is charged based on the training time (not actual cost). If taking classes at the 1/2 time training level the entitlement will be charged 1/2 month of Post-9/11 GI Bill benefits for each month of enrollment. |
Note: Most of today’s active duty members are eligible for the Post 9/11 GI Bill. |
Read the full article about the Navy Tuition Assistance plans on Military.com. |
AFTER years of tireless campaigning, work is finally set to go ahead to to improve safety at two notorious junctions on the A66 near Cockermouth. |
Residents have been calling for action on the busy junctions by Broughton and Brigham for up to 20 years. |
More than 900 people attended drop-in sessions about plans to improve the busy junctions in 2014. |
Highways England confirmed this week that funding had been agreed for a four-arm roundabout between the junctions. |
A spokesman said: "We’re still finalising the design of the Broughton to Brigham roundabout but we’re looking to reveal details early next month." |
It will form part of a £6million package which will include improvements at the Fitz and Great Clifton roundabouts and be delivered before the end of March next year, said the spokesman. |
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