My boss often assigns me tasks that are outside my job description. Some are above my pay grade and I never get compensated for that. Also, I think my boss discriminates against me because of my skin tone. I feel like I am being set up to fail so I can be fired. How do I handle this?
Your concerns remind us of the significance given to every first Wednesday of September. It is the international day when talent acquisition is commemorated. As recruitment experts who ensure employers have the right skill sets, experience, and expertise from the vast market of job seekers, talent recruiters recognise that diversity is fast becoming a significant game changer in building the right mix of work performance in any given industry.
The Constitution, especially Article 41 Clause 1, states that every person has the right to fair labour practices. Clause 2, Paragraph (b) of the Article provides that every worker has the right to reasonable working conditions. Reasonable working conditions should include tasks assigned to a person per the terms of reference clearly stated in their contract or job description. While there is recognition that each contract has a clause that addresses itself to any other duties as may be assigned by a supervisor or senior representative of the organisation, it must not represent or create circumstances that seem to breed perceptions of discrimination, unfairness, or mistreatment.
Article 27, Clause 1 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Clause 2 emphasises that equality includes full and equal enjoyment of all rights and fundamental freedoms. While Clause 5 proffers that no person shall discriminate directly or indirectly against another on any grounds such as race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
On several occasions, the Employment and Labour Relations Court (ELRC) has passed judgments that despise any form of discrimination. In Petition E-618 of 2021, the court concluded that it is discriminatory to provide different terms and conditions of employment to permanent and temporary employees in the same cadre. Section 5, Clause 3, Paragraph (a) of the Employment Act (2007) states that no employer shall discriminate, directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, colour, sex, language, religion, political or another opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.
The Employment and Labour Relations Court, as applies to all courts and of similar jurisdiction, having considered other elements, including evidence and the rule of law on matters before it, is faithful to Article 20 Clause 3, paragraphs (a) and (b) of the Constitution, which provides as follows: in applying a provision of the Bill of Rights, a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom, and implementation of rights and fundamental freedoms; and adopt the interpretation that most favours the enforcement of a right or fundamental freedom.
Employers’ fidelity to the Constitution should form part of this conversation. Article 41 Clause 3 paragraphs (a) and (b) states as follows: Every employer has the right to form and join an employer organisation and to participate in the activities and programs of an employer organisation. However, Section 5, Clause 2 of the Employment Act, in the spirit of Article 27 Clause 5, provides that an employer should promote equal employment opportunities and strive to eliminate discrimination in any employment policy or practice.
As we demonstrate our solidarity with human resource practitioners on Global Talent Acquisition Day, let us remember that diversity in abundance is discrimination in a graveyard. May the country promote a culture of Constitutionalism and the rule of law to ensure employers and employees benefit from the employment law.
