The Employment Equity Act aims to correct the demographical imbalance in the workplace by removing barriers to previously disadvantaged races, women and disabled persons. Chapter 2 of the Act provides a framework of anti-discrimination legislation aimed at placing a positive obligation on all employers to eliminate unfair discrimination in any employment policy or practice.

The anti-discrimination provisions of Chapter 2 only apply to employers or employees. Therefore, only an employee can refer an unfair discrimination dispute to the CCMA. However, Section 9 of the Act provides that the definition of “employee” is wide enough to include applicants for employment.

Unfortunately, the courts have not determined the precise meaning of ”applicants for employment”. The definition should be taken at its literal meaning to include a person who has indicated their desire to enter employment with a particular employer. Furthermore, the person must have lodged an application to be employed in a specific position.

A person who has lodged an application with a recruitment agency will be precluded from the definition, and independent contractors, who are also excluded from the application of the Act.

Therefore, any person applying for a position of employment may be entitled to relief for treatment amounting to unfair discrimination by the prospective employer even in the absence of an employment relationship.

Article by: Stephen Kirsten
Provincial Manager – Cape Town