Discrimination

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [Copyright: Marius Scheepers/16.4.1])

Affirmative action, Automatically unfair dismissal, Unfair Discrimination (including retirement age)

Affirmative action

National and Regional demgrafics had to be taken into account, Discrimination not protected ito section 6(2) EEA

C 368/2012

Solidarity v Department of Correctional Services

AA plan

defense of affirmative action rejected where employer has already met its targets; arbitrary exclusion of white male from senior post amounting to unfair labour practice

J 1161/2004

Willemse v Patelia & Others

Fines

the relevant provisions relate to penalties, the more lenient construction to the person liable to be fined should be preferred. This meant that the fine should be imposed for violation of the compliance order, subject to the court exercising a discretion in terms of the amount of the fine (up to the maximum penalties imposed by the Act). Relevant factors include the purposes of the Act; the extent of the contravention; the period the contravention has endured; the reasons for non-compliance; attempts made to comply, if any; the maximum fine prescribed and any relevant considerations relating to the respondent. To ensure compliance, the fine should have a punitive and preventative element, but should not be characterised by an element of retribution.

D730/05

Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd

Right to preferential treatment

Designated person does not have right to preferential treatment

CA1/05

Dudley v The City of Cape Town & Another

Employment equity

Plan, the issue was what constituted a rational coherent employment equityplan and action in line with such a plan, numerical targets,  not in line with a defensible employment equity plan and as suchthe conduct of the respondent against the applicant was unfairly discriminatory.

D253/03

Munsamy v Minister of Safety and Security and Another

Employment equity plan of the Department required a rigid application of quotas based on demographic representivity. (Argued: quota system which had failed to take account of the individual circumstances of the appellants. The plan, they contended, made provision for appointments, transfers or promotions by reference to quotas which strictly reflected the demographic representivity of the races and sexes throughout South Africa. Potential for their dignity to be infringed)

Court proceeded to examine the distinction between a quota (impermissible under the EEA) and the permissible concept of numerical targets. Individual self-worth, and therefore the dignity of all who lived in the country, could only be attained by removing the hierarchy of privilege and power which was sourced in a racist and sexist system. The court held that the Departments plan passed the test required in terms of the EEA as read together with the Constitution.

South African Police Services v Solidarity obo Barnard 2014 (6) SA 123 (CC).

(CA23/13) [2015] ZALAC 6

Solidarity and Others v Department of Correctional Services and Others

characteristics of administrative action based on existing jurisprudence

JR46/16

Association of Mineworkers and Construction Union (AMCU) v Minister of Labour and Others (JR46/16) [2018] ZALCJHB 107 (13 March 2018)

Review  S77(2) of the BCEA and 158 (1) (g) of the LRA-review based on legality-review of ministerial determination falling under PAJA - failure to invoke alternative remedy under section 50 (9) in respect of ministerial determination issued under s 50(8)(c) fatal  review of extension of the agreement extended under section 23 (1) (d) of the LRA - review available only on narrow ground of legality  review of s 23(1)(d) extension ought not to entail interrogation of bargaining process as if it were a hearing - merits of the application and costs.

Minister of Defence and Military Veterans v Motau and others 2014 (8) BCLR 930 (CC) at 941

[33] The concept of "administrative action", as defined in section 1(i) of PAJA, is the threshold for engaging in administrative-law review. The rather unwieldy definition can be distilled into seven elements: there must be (a) a decision of an administrative nature_ (b) by an organ of State or a natural or juristic person_ (c) exercising a public power or performing a public function_ (d) in terms of any legislation or an empowering provision_ (e) that adversely affects rights_ (f) that has a direct, external legal effect_ and (g) that does not fall under any of the listed exclusions.

Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (10) BCLR 931 (SCA)

[24] Whether particular conduct constitutes administrative action depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so.  Features of administrative action (conduct of an administrative nature) that have emerged from the construction that has been placed on section 33 of the Constitution are that it does not extend to the exercise of legislative powers by deliberative elected legislative bodies,  nor to the ordinary exercise of judicial powers,  nor to the formulation of policy or the initiation of legislation by the executive,  nor to the exercise of original powers conferred upon the President as head of state.  Administrative action is rather, in general terms, the conduct of the bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of the State which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals.[25] The law reports are replete with examples of conduct of that kind. But the exercise of public power generally occurs as a continuum with no bright line marking the transition from one form to another and it is in that transitional area in particular that:[d]ifficult boundaries may have to be drawn in deciding what should and what should not be characterised as administrative action for the purposes of section 33.In making that determination:[a] series of considerations may be relevant to deciding on which side of the line a particular action falls. The source of the power, though not necessarily decisive, is a relevant factor. So, too, is the nature of the power, its subject matter, whether it involves the exercise of a public duty and how closely it is related on the one hand to policy matters, which are not administrative, and on the other to the implementation of legislation, which is. While the subject-matter of a power is not relevant to determine whether constitutional review is appropriate, it is relevant to determine whether the exercise of the power constitutes administrative action for the purposes of section 33.

the Equality Report suggests that socio-economic needs be considered within designated, vulnerable groups. In other words, affirmative action should continue to be implemented on the basis of race, gender and disability, given the persistence of current patterns of economic inequality. However, special measures should be targeted at vulnerable groups within apartheid-era classifications so as to recognise multiple forms of disadvantage that they continue to experience. In this context, the report recommends that the EEA be amended to target more nuanced groups on the basis of need, taking into account social and economic indicators.

J3092/18

Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019)

the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators.

Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA

[27]      In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the reports findings and recommendations for the purpose sought by Solidarity, or for any other purpose.

Automatically Unfair Dismissal (See also Unfair Discrimination)

Pregnancy

Unfair

CA6/99

Woolworths vs Whitehead

pregnancy

187(1)(e)

JS270/06

De Beer v SA Export Connection CC t/a Global Paws

discrimination

Tempory employee

outside list ito s 9 EEA

D45/05

McPherson v University of Kwa-Zulu Natal & Another

Given a contract, failed  to resign

this was existing company policy

JS892/08

Solidarity obo Wehncke v Surf4cars (Pty) Ltd

Onus on employee to show

C1051/09

Mouton v Boy Burger (Edms) Bpk

Dreadlocks hair, failed to cut

gender discrimination

simple question: would the complainant have received the same treatment from the defendant or respondent but for his or her gender, religion, culture etc?

Of importance in this enquiry was an evaluation of any impairment to the dignity of the complainants, the impact upon them, and whether there were less restrictive and less disadvantageous means of achieving the purpose. There also had to be a rational and proportional relationship between the measure and the purpose it sought to achieve. Employers, accordingly, should, wherever reasonably possible, seek to avoid putting religious and cultural adherents to the burdensome choice of being true to their faith at the expense of being respectful of the management prerogative and authority.

CA6/2010

Department of Correctional Services and Another v POPCRU and Others

limitation of the respondents rights; the impact of the discrimination on the complainants; the social position of the complainants; whether the discrimination impaired the dignity of the complainants;

CA6/2010

Department of Correctional Services and Another v POPCRU and Others

whether the discrimination had a legitimate purpose; and whether reasonable steps had been taken to accommodate the diversity sought to be advanced and protected by the principle of non-discrimination.

CA6/2010

Department of Correctional Services and Another v POPCRU and Others

Failure to take disciplinary action

JS1024/09

Harding v Petzetakis Africa (Pty) Ltd

devout Christian who refused to work on Sundays

C63/2011

SACTWU and Others v Berg River Textiles

to compel acceptance of demand in respect of matter of mutual interest

Held that the dismissal was simply a ploy to get rid of those employees who would not accept changes to their terms and conditions of employment.

J3232/00

NACBAWU v Hernic Premier Refractories (Pty) Ltd

Unfair discrimination

Employment Equity

the EEA must be read with the rest of the Constitution, in casuss205-208 of the Constitution, which demand that national legislation must enable the police service to discharge its responsibilities effectively. Held: The Constitution envisages a balance between the affirmative action imperative and other imperatives including, for present purposes, the need for the police service to discharge its responsibilities effectively. The Constitution does not prescribe how the two imperatives are to be balanced but the balance must be a rationally (sic) one. Held that when an employer defends discriminatory conduct on the basis of s6(2) of the EEA it must also show that its affirmative action measures are in harmony with the rest of the Constitution

JS222/02

Coetzer & Others v Minister of Safety & Security & Another

Conditions of employment

to switch from a three shift system to a two shift system

on the facts ie the version of the respondent employer, the proposed dismissals would be for operational requirements and that the LC ought not therefore to have granted an interdict

JA9/01

Frys Metals (Pty) Ltd v NUMSA & Others

Harassment

Pleadings: had not pleaded that she had been discriminated against on one of the listed grounds, or a ground analogous to the listed grounds, nor had she indicated a comparative person or group of people in relation to whom she had been treated differently. Insofar as she had indicated this in relation to one person, she had not pleaded anything more than mere differentiation

an employee claiming harassment must do more than just make the bald allegation; it (sic) must clearly set out why the harassment amounts to unfair discrimination

C1103/02

Aarons v University of Stellenbosch

To accept demand and Retrenchment

where an employer has valid operational requirements to address, any dismissal in the course of addressing those requirements cannot be automatically unfair, noting that an employer cannot force employees to, for example, work short time even where this is justified by operational requirements. Held, however, that where employees refuse to accept changes which are justifiable, then the employer may fairly dismiss those employees because the contracts of employment he has with them can no longer properly serve his operational requirements.

Held that where a dismissal is conditional, for example where it is dependent on the employee refusing the employers demand, then it will fall within the ambit of s187(1)(c) of the LRA (at [36] - [38], referring to TAWU & others v Natal Co?operative+G158 Timber Ltd (1992) 13 ILJ 1154 (D) and Fry's Metals (Pty) Ltd v NUMSA & others (2003) 24 ILJ 133 (LAC)

PA4/01

CWIU & Others v Algorax (Pty) Ltd

Sexual Harassment

Damages

R150000 for general damages, R23128 for medical expenses and R47348 for the loss of income.  The court also instructed that future loss of income and medical expenses were to be calculated by an actuary for further submission

1853/00

Sonja Grobler (nee Ensink) v Naspers Bpk & Gasant Samuels

Pregnancy

if an employee is dismissed on grounds of pregnancy the employer is obliged to apply the guidelines applicable for dismissals for medical incapacity as stated in Hendricks v Mercantile & General Insurance Co of SA (1994) 15 ILJ 304 (LAC).

JS919/02

Nomakhosazana Mnguni v Robert Gumbi

Sexual Harassment

Damages: Alexander v Home Office ((1988) IRLR 190(CA); Intertech Systems (Pty) Ltd v Sowter ((1997) 18 ILJ 689(LAC)); Ntsabo v Real Security CC ((2003) 24 ILJ 2341(LC)) and Grobler v Naspers Beperk & Another ((2004) 25 ILJ 439 ( C)

C323/04

Christian , A v Colliers Properties

Sexual Harassment

Damages:  maximum compensation ; patrimonial damages: of R45 000 ; sum of R20 000 in respect of future medical costs would be awarded.; for contumelia and pain, suffering etc. stemmed from the same incident and that it seemed equitable to make a globular award; general damages should be fixed at R50 000

C259/00

Ntsabo, Bongiwe v Real Security cc

Sexual Harassment

vicarious liability

the company was vicariously liable for the sexual harassment committed by Mr Samuels as they were under a legal obligation to ensure safe working conditions and were obliged to protect Ms Grobler from such harassment. It was submitted that various managerial staff were aware of the harassment and were in breach of their duty to prevent its recurrence by remaining passive; common law duty to employees to take reasonable care for their safety and that this could not be confined to physical harm from physical hazards alone.

301/04

Media 24 Limited & Samuels, Gasant v Grobler, Sonia

Diabetes

Held that in the absence of any convincing evidence pointing to its efficiency the blanket ban was guilty of paternalistically overreaching and accordingly constituted unfair discrimination. Held further that the arguments supported a policy of individual assessments, not one of a blanket ban. Noted that the degree of risk in employing a diabetic was not material as it was no more of a risk of other sudden collapses such as heart attacks or cerebral episodes.

C521/03

IMATU; Murdoch, S v City of Cape Town

Union activities

found guilty of insubordination and disrupting the companys operations

the employee should provide evidence to show credible possibility that an automatically unfair dismissal took place and that it then behoved the employer to prove the contrary.

Mr Kroukam was an employee from hell who had a history of conflict in the company; evidence supported the claim that the dismissal was for his union activities and therefore automatically unfair

JA3/03

Kroukam, I P v SA Airlink (Pty) Ltd

Retirement Age

Passed retirement age of 65 (67)

some form of consultation was required; appropriate compensation was 3 months remuneration

JS749/03

Botha W W v Du Toit Vrey & Partners CC

Retirement Age

agreed retirement age for Ms Venter remained 70, with the option to retire at age 65

Cash Paymaster Services (Pty) Ltd v Browne (SILCS 2005:38; (2005) 14 LAC 8.34.1) the Labour Appeal Court had dealt with forced retirement in the context of s187(1)(f) of the LRA and had held that the forced dismissal of the employee at age 60 was automatically unfair

JS 930/04

HOSPERSA obo Venter, T v The South African Nursing Council

Incompatibility

that the employee had not been given an opportunity to confront his alleged disharmonious conduct and nor had he been counseled or given the opportunity to remedy such conduct. Held therefore that the employer had not discharged its onus to prove that the relationship had irretrievably broken down; his dismissal was in breach of s 187(c) and (d) of the LRA because he had initiated grievances against the companys unfair labour practices.

JS799/04

Jabari, M v Telkom SA (Pty) Ltd

Unfair discrimination; Affirmative action

affirmative action should not be arbitrarily and unfairly applied and referred the Court to Independent Municipality & Allied Workers Union v Greater Louis Trichardt Transitional Local Council ((2000) 21 ILJ 1119 (LC)).

P198/04

Baxter, JP v The National Commissioner: Correctional Services & The Minister for Correctional Services

Discrimination; belonged to the Baptised Nazarene Group which did not allow them to trim their beards

employer stated that the employees were contractually bound to be clean-shaven; this case was not based on contract; neatness is the rationale for regulating beards and it was held that the employers rule, as a security company, was neither arbitrary nor irrational and was in fact an IROJ; S v Negal, S v Solberg (1997 (4) SA 1176 (CC)), concluding that workers were not automatically exempted by their beliefs in complying with workplace rules; religion was such that, in order for everyone to enjoy it equally, some limitation of the right might be necessary.

D 671/03

Dhlamini PM & Others v Green Four Security

Pregnancy

it was improbable that Ms Ndlovu would have chosen to leave before she had to, as she was in somewhat straitened financial circumstance

JS 230/05

Ndlovu, M v Pather, S

Retirement Age

held that the school had no retirement policy at the time they employed Ms Evans and that they could not unilaterally implement new terms and conditions without her consent. The Court held further that she was dismissed because of her age; there was an agreement between Ms Evans and her employer that she would work until the age of 65.

JS 387/05

Evans, B P v Japanese School of Johannesburg

Pregnancy

the dismissal of Ms Uys was not associated with her pregnancy; there had been room for Ms Uyss rehabilitation within the company and that the sanction of dismissal was unjust.

JS 242/05

Uys, M v Imperial Car Rental (Pty) Ltd

Discrimination; Sexual harassment

vicarious liability

Should first of all promptly launch an investigation which will leave no reasonable stone unturned to try and find the perpetrator, if the identity of the perpetrator is not known. Second, it should take immediate steps to provide the employee with the best possible support in the form of counseling to establish what, if any, the psychological impact of the incident was on the employee. Third, the employer should as soon as possible take steps to eliminate or at least reduce the possibility of the incident recurring, irrespective of whether or not the trauma was caused by an employee or someone else.

C32/05

Piliso v Old Mutual Life Assurance (SA) Ltd & Others

alleged; Employee dismissed for exercising rights conferred by the LRA; dismissal was therefore based on her exercising her rights by referring the matter to the bargaining council

JS838/06

Mutale v Lorcom Twenty Two CC

automatically unfair as it was based on his age, noevidence to show what the retirement age was for an external sales consultant in theemployers business.

D775/2010

Hibbert v ARB Electrical Wholesalers (Pty) Ltd

Pregnancy

Decision to terminate the applicants services had been taken in view of problems surrounding her performance, particularly an altercation with an important client the previous week, and had nothing to do with her pregnancy.

(JS 574/10) [2013] ZALCJHB 168

Nadia v B&B t/a Harvey World Travel Northcliff

Sexual harassment

No sexual connotation in the messages sent. Commissioner had failed to have regard to the power imbalances between the complainant and the employee and her explanation in the arbitration that she failed to report the harassment earlier. Senior managerial position to refrain from any conduct that would contribute to a hostile work environment. Where the complainant signalled her discomfort and advised him that contact was unwelcome. In terms of the code a single incident of harassment could constitute sexual harassment and it was not necessary that the recipient had made it clear that the behaviour was considered offensive. The failure by the commissioner to take proper account of the 2005 Code. Dismissal substantively fair.

(C350/13) [2014] ZALCCT 15

SA Metal Group (Pty) Ltd v CCMA and Others

Missions premises through a access gate manned by security guards employed by the Mission which was the appellants landlord. The respondents sin was to fall pregnant and be unmarried. contended that it as employer did not have an obligation to intervene where one of its employees had contravened the landlords code. Employers were under an obligation to observe the anti-discriminatory provisions.

(DA2/13) [2014] ZALCD 17

Ekhamanzi Springs (Pty) Ltd v Mnomiya

Employee having asked of consultant to his employer whether she wanted a lover that might. Question posed after a dinner whilst travelling outside the country. Question posed more in hope than expectation. No workplace power differential. Although inappropriate not sexual harassment.

C751/2013

Simmers v Campbell Scientific Africa (Pty) Ltd

Dismissal was the exercise of a right in terms of the LRA. Invalid in terms of the protection afforded by s 5(4) of the LRA.

Demand to withdraw the referral, failing which the respondent would invoke the option of terminating her service in terms of the outcome of the disciplinary enquiry.

(JS921/13) [2014] ZALCJHB 312

Rankoane v Shoprite Checkers (Pty) Ltd

Sexual harassment

Male superior undressing near female assistant; taking her to Teazers restaurant; and invading her personal space in wokplace. Allegations of offer of money for sex not plausible. In context of close relationship and the facts that at the time they happened nothing was not wanted by the applicant, the incidents of harassment not amounting to sexual harassment. Applicant never once complained about the manner in which she was being treated, and only did so for the first time when issued with the warning.

(JS832/2013) [2014] ZALCJHB 342

Bandat v De Kock and Another

Employee having been asked in her interview whether she intended having children in next five years. Court finding on the evidence that dismissal was on account of her pregnancy.

(JS932/2012) [2014] ZALCJHB 343

Heath v A & N Paneelkloppers

Retirement Age.

Defence provided by s 187(2)(b) of the LRA. Always vulnerable to being retired after reaching the age of 60.

(JS886/09) [2014] ZALCJHB 357

Kutuma and Others v Limpopo Legislature

automatically unfair dismissal as envisaged by s 187(1)(c) of the LRA in that the purpose of the dismissal was to compel him to accept the contract of employment

the respondent imposed a restrictions or require him to pay the insurance excess amount should the vehicle be damaged in a collision. ignored the ultimatum and refused to sign the contract.

It was unreasonable for the appellant to refuse to accept the respondents offer of employment on the basis of the terms as set out in the contract of employment, was necessary for the respondents business requirements

(JA63/11) [2014] ZALAC 6

Solidarity obo Wehncke v Surf4cars (Pty) Ltd

Retirement Age (CC)

to the effect that a retirement age that was not an agreed retirement age became a normal retirement age when employees had been retiring at that age over a certain long period, so long that it could be said that the norm for employees in that workplace or for employees in a particular category, was to retire at a particular age.

No attempt by the respondent to seek her agreement to amend the terms and conditions of her employment. Furthermore, nobody else in the company had ever retired at the age of 65.

Rubin Sportswear v SA Clothing and Textile Workers Union and others (2004) 25 ILJ 1671 (LAC)

(C956/2013) [2015] ZALCCT 8

Truter v Carecross Health (Pty) Ltd

same-sex marriages: maternity leave

the court held that there was no reason why an employee in the position of the applicant should not be entitled to maternity leave and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother was entitled.

(D 312/2012) [2015] ZALCD 20

MIA v State Information Technology Agency (Pty) Ltd

Discrimination: Woman

JS40/14

Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016)

58]The Respondents evidence in relation to the dismissal was seriously lacking in substance. Most notably, there was no explanation proffered by Mr Venter why Noormohamed or Kabeer did not testify on behalf of the Respondent, or why they could not be subpoenaed to testify. I must accordingly infer that they would not have been able to support the Respondents defence.

compensation in the amount of R852 462.00 equivalent to 24 months salary for the automatic unfair dismissal

Disclosure regarding promotion

JS 532/11

John v Afrox Oxygen Limited (JS 532/11) [2015] ZALCJHB 237 (4 August 2015)

Automatically unfair dismissal. Protected disclosure in terms of the Protected Disclosure Act. The employee informing the employer that the re-grading of positions was done irregularly because no consultation was held with the affected employees.

Test: dismissal to avoid it section 197 obligations

JS752/13

Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017)

Jabari v Telkom SA (Pty) Ltd (2006) 27 ILJ 1854 (LC) at 1869

where it was held that where the dominant reason for the applicants dismissal in that matter was predicated on the fact that the he had initiated grievance proceedings against the respondent's management, in challenging its unfair labour practices,...the applicant had the constitutional and statutory right to initiate and pursue grievances against the respondent, as long as his actions were motivated by a bona fide belief that the respondent was subjecting him to unfair labour practices.

Van der Velde v Business and Design Software (Pty) Ltd and Another (2006) 27 ILJ 1738 (LC).

[20] To conclude on this issue, it is accepted that an employee who lodges an internal grievance should enjoy protection under the provisions of section 187 (1) (d) of the LRA. This is because the act of lodging a grievance is merely an assertion of a right not to be treated unfairly, something which is guaranteed under the protection of fair labour practices enshrined in section 23 (1) of the Constitution and section 185 (b) of the LRA. Support for this view as also correctly pointed out on behalf of the applicant is further found in Jabari v Telkom SA (Pty) Ltd[7] where it was held that where the dominant reason for the applicants dismissal in that matter was predicated on the fact that the he had initiated grievance proceedings against the respondent's management, in challenging its unfair labour practices,...the applicant had the constitutional and statutory right to initiate and pursue grievances against the respondent, as long as his actions were motivated by a bona fide belief that the respondent was subjecting him to unfair labour practices.[21] The approach to be followed, (albeit it was formulated within the context of an automatically unfair dismissal based on section 187(1) (g) of the LRA) in establishing whether a dismissal is automatically unfair is that as set out in Van der Velde[8] by Van Niekerk AJ (as he then was) in the following terms;In summary, and in an attempt to crystallise these views and to formulate a test that properly balances employer and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of section 197 or a reason related to it, is this: the applicant must prove the existence of a dismissal and establish that the underlying transaction is one that falls within the ambit of section 197; the applicant must adduce some credible evidence that shows that the dismissal is causally connected to the transfer. This is an objective enquiry, to be conducted by reference to all of the relevant facts and circumstances. The proximity of the dismissal to the date of the transfer is a relevant but not determinative factor in this preliminary enquiry; if the applicant succeeds in discharging these evidentiary burdens, the employer must establish the true reason for dismissal, being a reason that is not automatically unfair; when the employer relies on a fair reason related to its operational requirements (or indeed any other potentially fair reason) as the true reason for dismissal, the Court must apply the two-stage test of factual and legal causation to determine whether the true reason for dismissal was the transfer itself, or a reason related to the employers operational requirements; the test for factual causation is a 'but for' test- would the dismissal have taken place but for the transfer? if the test for factual causation is satisfied, the test for legal causation must be applied. Here, the Court must determine whether the transfer is the main, dominant, proximate or most likely cause of the dismissal. This is an objective enquiry. The employer's motive for the dismissal, and how long before or after the transfer the employee was dismissed, are relevant but not determinative factors. if the reason for dismissal was not the transfer itself (because, for example, it was a dismissal effected in anticipation of a transfer and in response to the requirements of a potential purchaser of the business) the true reason may nonetheless be a reason related to the transfer; to answer this question (whether the reason was related to the transfer) the Court must determine whether the dismissal was used by the employer as a means to avoid its obligations under section 197. (This is an objective test, which requires the Court to evaluate any evidence adduced by the employer that the true reason for dismissal is one related to its operational requirements, and where the employer's motive for the dismissal is only one of the factors that must be considered). if in this sense the employer used the dismissal to avoid it section 197 obligations, then the dismissal was related to the transfer; and if not, the reason for dismissal relates to the employers operational requirements, and Court must apply section 188 read with section 189 to determine the fairness of the dismissal.

SeeKroukam v SA Airlink (Pty) Ltd(supra);NUMSA & Others v Driveline Technologies (Pty) Ltd & Another2000 ILJ 142 (LAC) at 152J;Van der Velde v Business Design Software (Pty) Ltd & Anotherat 1745 I; andJabari v Telkom SA (Pty) Ltdat 927A-B.

[23] If the applicant succeeds in discharging these evidentiary burdens, the respondent must establish the true reason for dismissal, being a reason that is not automatically unfair. This requirement is in tandem with the principle that in order to ascertain whether a dismissal constitutes an automatically unfair dismissal in terms of s187 of the LRA, one must ascertain the true reason for such a dismissal

operational reasons

JS596/15

National Union of Metalworkers of South Africa (NUMSA) obo Members v Aveng Trident Steel (A division of Aveng Africa) (Pty) Ltd and Another (JS596/15) [2017] ZALCJHB 513; [2018] 5 BLLR 500 (LC) (13 December 2017)

A referral in terms of which the second applicants allege that they were automatically unfairly dismissed. An employee who alleges automatically unfair dismissal is required to produce credible evidence showing that he or she has been subjected to an automatically unfair dismissal. Ordinarily, the employer is the one knowing the reason why it dismissed an employee. In casu, the first respondent states that it dismissed the second applicants for operational reasons. The second applicants on the other hand allege that the true reason for their dismissal is that because they refused to accept a demand of the first respondent for them to accept new contracts, thus automatically unfairly dismissed within the contemplation of section 187(1)(c) as amended. An employee must produce credible evidence showing that he or she has been subjected to an automatically unfair dismissal before an employer is behoved to show that the dismissal is not for a prohibited reason. The amended section 187(1) (c) interpreted and applied. The principles in Frys Metals and Algorax has not gone to waste. Held: (1) The second applicants were not automatically unfairly dismissed. Held: (2) The dismissal of the second applicants is substantively fair. Held: (3) Each party to pay its own costs.

s 187 (1) (c) and the explication of its purpose in the Explanatory Memorandum that the application of the section is limited to the collective sphere. ; retirement age and agreed that 70

JS1042/19

Jacobson v VITALAB (JS1042/19) [2019] ZALCJHB 157; (2019) 40 ILJ 2363 (LC) (28 May 2019)

[18] Although the pre-amendment version of s 187 (1) (c) was invoked in a number of dismissal disputes concerning individual employees[2], the question that arises consequent on the amendment and the clear statement of its purpose is whether an individual employee may claim the protection afforded by the section.[3][19] It would seem to me from the wording of the amended s 187 (1) (c) and the explication of its purpose in the Explanatory Memorandum that the application of the section is limited to the collective sphere. The Explanatory Memorandum makes clear that the purpose of the amended s 187 (1) (c) is to protect the integrity of the collective bargaining process. It precludes the use of dismissal as a legitimate instrument of coercion in the collective bargaining process.[4] That process, by definition, contemplates concerted action and the participation of more than one employee.[5] For the section to find application therefore, there must have been an employer demand made of two or more employees, they must have refused to accept that demand and they must have been dismissed in consequence of that refusal.[6] The conclusion that s 187 (1) (c) is not intended to apply in individual dismissal disputes is fortified by the wording of the provision itself the reference is to a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer (own emphasis). The use of the plural makes clear that the extent of the prohibition against dismissal applies only where an employer seeks to extract a concession by employees to demands made in a collective context.[20] In the present instance, the respondent does not dispute that there was an employment relationship between the parties, or that it demanded that the applicant sell his shares in Strawberry Bush on the terms set out in the proposed service agreement of 9 July 2018. Even if I accept the applicants contention that the demand is one that concerns a matter of mutual interest (because it is inextricably bound to the employment relationship between the parties, and in particular, an agreement to regulate the applicants continued employment by the respondent)[7] the reason for dismissal is not one contemplated by s 189 (1) (c) since the present dispute does not concern the integrity of collective bargaining, nor does it concern more than one employee.

Section 187(1)(d) of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is that the employee took action, or indicated an intention to take action, against the employer by (i) exercising any right conferred by this Act or (ii) participating in any proceedings in terms of this Act.

JA61/2018

DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZALAC 26; [2020] 9 BLLR 881 (LAC); (2020) 41 ILJ 2078 (LAC) (18 May 2020)

lodged a formal grievance in terms of the appellants grievance procedure wherein she alleged that she was assaulted by Mailen towards the end of the meeting The appellant then charged the respondent with various counts of misconduct. Following a disciplinary enquiry chaired by a member of the Bar, the respondent was found to have committed gross misconduct for having falsely accused Mailen of assault

[10] The Labour Court found that the evidence established a causal nexus between the respondent exercising her rights to institute a grievance and her dismissal. It in effect found that the sine qua non and the proximate or predominant cause of the dismissal was the lodging of the grievance rather than the alleged dishonest or false accusation against Mailen. It accordingly concluded that the respondent's dismissal was automatically unfair as contemplated in section 187(1)(d) of the LRA and ordered the appellant to pay compensation equivalent to nine months remuneration within 30 days and made no order as to costs.

The test for determining the true reason is that laid down in SA Chemical Workers Union v Afrox Ltd.[(1999) ILJ 1718 (LAC) See also Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) para 26 et seq.] The court must determine factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the employer. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether the taking of action against the employer was the main, dominant, proximate or most likely cause of the dismissal.

[16] A grievance complaining about a fellow employees conduct, filed in terms of a contractually agreed grievance procedure at first glance does not constitute taking action against an employer, nor ordinarily, does it involve the exercise of any right conferred by the LRA or the participation in any proceeding in terms of the LRA. The LRA does not expressly confer rights upon employees to file grievances. Nor does it establish a mechanism or proceeding for the resolution of grievances filed by employees. The only reference to the processing of grievances in the LRA is found in section 115(3)(b) of the LRA which provides that the CCMA may provide employees, employers and their bargaining agents with advice or training relating to preventing and resolving disputes and employees grievances. Hence, the only right that the LRA confers in relation to employee grievances is the right to approach the CCMA for training.

[19] As said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employers conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision.

dismissal was as a result of the lodging of the grievance with respect to his injury on duty claim.

JS 70/2018

James v Namcon Logistics (Pty) Ltd (JS 70/2018) [2020] ZALCJHB 189; (2020) 41 ILJ 2845 (LC) (10 September 2020)

[106] I disagree with both parties, read in whole, DBT (DBT Technologies (Pty) Ltd v Mariela GarnevskaJA 61/2018 handed on 18 May 2020. ) does not close the door on a party, simply because they had not lodged a grievance. In considering the characterisation of provisions in section 187(1)(b) of the LRA, the Court found that to an extent that the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer, the employee in that matter had not taken action or intended to take action against the employer. In clarifying the legal principles concerned, the Court stated as follows: As said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employers conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision. My emphasis

The dismissal of the applicant by the respondent is automatically unfair.

dismissal is automatically unfair because it is linked to his grievance

JS 522/19

Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC) (25 March 2021)

[15] This dispute is about the proximate reason for the dismissal of Mkokeli.

Aveng...2003 (1) SA 11 (SCA).

[30] Determining the reason or the principal reason for a dismissal is a question of fact. As such it is a matter of either direct evidence or of inference from the primary facts established by evidence. The reason for dismissal consists of a set of facts, which operated on the mind of the employer when dismissing an employee. They are within the employers knowledge. The employer knows better than anyone else in the world why it dismissed an employee.

[30]...The test for determining the true reason for the dismissal was laid down in Afrox and it is to first determine the factual causation by asking whether the dismissal would have occurred if Mkokeli had not referred an unfair labour practice dispute. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation, namely whether such refusal was the main, dominant, proximate or most likely cause of the dismissal.[13]

[32] The conclusion this Court reaches is that Mkokeli was dismissed for misconduct and the question whether dismissal for that reason is fair or not, is a question falling outside the jurisdiction of this Court.

reason for the dismissal is that of having taken an action against the employer by referring a dispute

JS 222/19

Hadebe v Media, Information and Communication Brand South Afr (JS 222/19) [2023] ZALCJHB 153 (23 May 2023)

The Court’s role is to determine using the causation test, the real, true and proximate reason for the dismissal. If the real reason for the dismissal is that of having taken an action against the employer by referring a dispute, then by law, the dismissal is automatically unfair. However, if the dismissal is for reasons related to conduct, it being a fair reason for dismissal, the dismissal is potentially fair. This Court lacks jurisdiction over dismissal disputes predicated on conduct.

[17] Of cardinal importance is that the alleged dismissible offences arose before the exercise of the right of referral. Thus on application of the causation test[4], even if Hadebe did not refer a dispute she was already a candidate for dismissal and the reason for her candidature is that she had made herself guilty of dismissible offences. On application of factual causation, Hadebe would have been dismissed even if she exercised her right of referral.

s 187 (1) (c) and retrenchments

JA 130/22

National Union of Food Beverage Wine Spirits andAllied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024)

National Union of Metalworkers of SA & others v Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) & another[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident).[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident).

[67] A careful analysis of the wording of the section, alongside the explanatory memorandum, demonstrates that the interpretation contended for by NUMSA is incongruous with the section. What that contention boils down to is that an employer considering operational requirements may never resort to retrenchments without contravening the section. This, in my view, would undermine an employer’s right to fair labour practices as entrenched in s 23 (1) of the Constitution, since it would take away its right to resort to retrenchments where operational requirements render them necessary.

[30] Put another way, it is not an automatically unfair dismissal for an employer to dismiss an employee who refuses to accept an offer of alternative employment made in the context of a retrenchment process, where the reason for dismissal is the employer’s operational requirements. As the Constitutional Court observed,[8] it does not necessarily follow that, simply because a proposed change to terms and conditions of employment is refused by an employee and a dismissal ensues thereafter, the reason for dismissal is the refusal to accept the proposed change.

[31] The sole enquiry under s 187 (1) (c) therefore is into the reason for dismissal and specifically, whether the reason for dismissal was a refusal by the employee to accept a demand made by the employer concerning terms and conditions of employment. On the approach endorsed in the first judgment in the Constitutional Court, the factual and legal causes of the dismissal ought to be determined by asking first whether the dismissal would have occurred had the employees not refused the demand (a ‘but for’ test), and secondly, whether the refusal was the main, dominant or proximate cause of the dismissal.[9]

"[32] The application of these principles assumes that a proper factual foundation for the application of s 187 (1) (c) has been laid. An employee claiming to have been dismissed for a reason that is automatically unfair is required to adduce some evidence to establish at least on a prima facie basis that a reason for dismissal that is automatically unfair is the main for dismissal. In Kroukam v SA Airlink (Pty) Ltd[ [2005] ZALAC 5; [2005] 12 BLLR 1172 (LAC) at para 28.] Davis AJA said:

‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.’"

automatically unfair within the meaning of section 187(1)(d) and 187(1)(f)[1] of the Labour Relations Act[2] (LRA), and further constituted unfair discrimination in terms of section 6(1) of the Employment Equity Act[3] (EEA). She seeks compensation under section 193(1)(c) of the LRA, and under section 50(2)(a) and 50(2)(b) of the EEA.

JS334/2021

Mahomed v Specti Vision Trading CC (JS334/2021) [2024] ZALCJHB 506 (17 December 2024)

32] As a starting point, there can be no dispute that an allegation of sexual harassment is inherently serious[5]. In the Code[6], sexual harassment is defined as ‘unwelcome conduct of a sexual nature that violates the rights of an employee, considering all the factors such as; whether the harassment is on the prohibited grounds of sex and /or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee’. There can further be no doubt that where proven, the consequences of such conduct are dire for both the alleged ‘victim’ and the alleged ‘harasser’. The consequences are even more dire for an employer where it is found that it failed to take any action to address or prevent the conduct from occurring again.

[33] It was correctly submitted on behalf of the applicant that for the purposes of liability, the steps of a section 60 of the EEA claim are that; an allegation of a contravention at workplace must have been made and secondly, that it must have been reported immediately. In this case, and regarding the first and second steps, the Court accepts that after the alleged incident on 5 November 2020, the applicant had sent an email to HR, and informed Kahn and Harilal about it.

[34] The third step under section 60 of the EEA is whether the alleged contravention was proven. It needs to be said from the onset that there are worrying features of the applicant’s evidence which in my view created doubt as to the credibility, reliability and probabilities of her versions. Against this observation, there can be no doubt that the applicant had on the day of the alleged incident, greeted Mashabela and Masuku in clearly demeaning, belittling and derogatory terms. As to how anyone at the workplace can refer to grown men as ‘boys’, babies, or ‘girls’ is beyond me

[43] The fourth and final step relates to whether the applicant had proven that the respondent failed to take the necessary steps. Against the improbabilities of the applicant’s version that she was sexually harassed or assaulted, ordinarily, it would not even be necessary to demonstrate whether the respondent took any steps against the alleged harassers. The Court however appreciates that any form of complaint at the workplace that may constitute or be construed as sexual harassment, deserves the urgent attention of the employer. This is so in that under Item 8 of the Code, the employer is obliged in terms of Section 60 of the EEA to inter alia, to take proactive and remedial steps to prevent all forms of harassment in the workplace. The employer is also obliged to have an attitude of zero-tolerance towards harassment and create and maintain a working environment in which the dignity of employees is respected.

[44] In Mokoena and Another v Garden Art (Pty) Ltd and Another[[2007] ZALC 90; [2008] 5 BLLR 428 (LC); (2008) 29 ILJ 1196 (LC)], it was held that the employer became liable in terms of section 60 of the EEA, where the alleged harassment was brought to its attention, and that it however failed to take proper steps to prevent such harassment in the future. The Court further held that where the employer had reacted to employee’s report of sexual harassment by issuing a written warning, and where no further incidents had occurred, the employer was not liable in damages to the employees.

[50] It was correctly pointed out on behalf of the respondent in reference to Mokoena and another v Garden Art Ltd and another[8], that an objective assessment must be made of all of the steps taken by the respondent as a whole, to ascertain if they were reasonable to the extent of avoiding liability accruing under section 60 of the EEA.

"[78] It is trite that employees cannot use the provisions of section 187(1) of the LRA as a shield against disciplinary processes related to misconduct against them. The Court has made its conclusions regarding the alleged sexual harassment claim and the issue is whether despite the merits of the referral, there was cause to dismiss the applicant.

"

1. The applicant’s claims are dismissed.

(i) exercising any right conferred by the LRA; and (ii) participating in any proceedings in terms of the LRA.

JA47/2023

Nutrichem (Pty) Ltd v Southern African Clothing and Textile Workers Union and Another (JA47/2023) [2025] ZALAC 13 (26 February 2025)

[34] Section 187(1)(d) provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is that the employee took action, or indicated an intention to take action, against the employer by (i) exercising any right conferred by the LRA; and (ii) participating in any proceedings in terms of the LRA.

[36] The appellant pleaded that the reason for the dismissal was not the aggressive and unacceptable letter but was due entirely to the respondent’s operational requirements.

[66] There were no selection criteria discussed, let alone, agreed upon. No fair or objective criteria was applied. The ineluctable conclusion is that union membership was the only criteria. These factors rendered the dismissals substantively unfair. This finding is of no moment because of my finding that the workers were automatically unfairly dismissed.

any other arbitrary ground

JR2354/18

Nkosi and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2354/18) [2025] ZALCJHB 123 (25 March 2025)

[16] In Naidoo and others v Parliament of the Republic of SA[3] (Naidoo), the Labour Appeal Court dealt with the proper interpretation of sections 6(1), 6(4) and 11 of the Employment Equity Act. The Court observed that the issue was whether the “narrow” or “broad” interpretation of the words “any other arbitrary ground” in section 6(1) of the Employment Equity Act should prevail. The “narrow” interpretation required that the words “any other arbitrary ground” be limited to a ground that is analogous to the grounds that are specifically listed in section 6(1) of the Employment Equity Act, whilst the “broad” interpretation required the words “any other arbitrary ground” to be a stand-alone ground that did not have to be analogous to the specifically listed grounds in section 6(1) of the Employment Equity Act. The Court held that the need to link the grounds that are not specifically listed in section 6(1) of the Employment Equity Act to the specifically listed grounds was the foundation of the line of authority that supports the “narrow” interpretation of the words “any other arbitrary ground”.

"17] The Labour Appeal Court held that section 6(1) of the Employment Equity Act was not a catch-all phrase:

‘[24] … The thesis advanced was that the phrase “any other arbitrary ground” had to be saved from redundancy. Thus, it must be understood to add something distinctive to the listed grounds. This thesis assumed the addition of a fresh class of grounds that is amorphous and is knowable simply by the external manifestation of capriciousness. Its broad scope was argued to be desirable.

[25] This is a radical idea. It would make s 6(1) a font of a remedy for grievances with virtually no limits. But the EEA is not intended to be a catch all or a panacea. Indeed, the EEA is the instrument of s 9 of the Constitution and therefore its mission is to give teeth to that constitutional guarantee within the scope of the terms expressed in that section. Section 9 is not an all-encompassing injunction, rather its purpose is to give recognition to the value of our humanity and provide a remedy for aggression against us on the grounds of our intimate attributes, whether inherent or adopted. In other words, section 9 has a specific and concrete focus, intelligible within the context of the historical experience of South Africa’s legacy of oppression. The writers, Garbers and Le Roux, rightly caution against being seduced by the idea that anti-discrimination law can be weaponised to solve all labour market ills. Other vicissitudes of life find remedies elsewhere, not least of all in the panoply of protections in Labour Legislation.’ (own emphasis)[4]"

"18] The Labour Appeal Court held that the term “any other arbitrary ground” was not meant to be a self-standing ground:

‘[26] The insertion of the word ‘other’ supports the conclusion that the phrase “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of section 6.’"

[19] The Labour Appeal Court upheld the narrow compass interpretation of the phrase “any other arbitrary ground”, thus rejecting the broad interpretation of that phrase.

Grievance lodged against director

JS562/22

Mqikela v Pristo Response Trading (JS562/22) [2025] ZALCJHB 243 (18 June 2025)

Alleged unfair treatment and victimization – Non-payment of bonuses and salary adjustments – Failure to address grievance – Unfair labour practice dispute referred to CCMA – Informed of possible retrenchment within 24 hours of referral – Referral of unfair labour practice dispute is main cause of dismissal – Operational requirements defence was a fabrication – Dismissal declared automatically unfair

The plaintiff complained about alleged unfair treatment including victimisation, abusive behaviour, favouritism which includes increasing other employees’ salaries except hers, short payment of annual bonuses to the employees who in turn raised complains to her, being sidelined from human resources duties and meetings and the defendant’s alleged failure to pay her “bonus, salary adjustment and incentive bonus”.

[10] On 31 January 2022, the plaintiff declared an unfair labour practice dispute and referred it to the Commission for Conciliation, Mediation and Arbitration (CCMA). She recorded that the dispute arose when she enquired about a salary increase and an incentive bonus, and sought that the defendant pay her the increase from 2020 and the incentive bonus per the agreement.

"21] The plaintiff has approached this Court claiming automatically unfair dismissal because she was dismissed for exercising her right in terms of section 187(1)(d) of the LRA. This section provides that:

‘(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is –

…

(d) that the employee took action, or indicated an intention to take action, against the employer by –

(i) exercising any right conferred by this Act; or

(ii) participating in any proceedings in terms of this Act;’"

[22] The right referred to by the plaintiff in this case is her referral of an unfair labour practice dispute to the CCMA, not the grievance[2]. In the present case, there can be no doubt that whilst the plaintiff lodged a grievance in terms of the defendant’s grievance procedure and/or the contract of employment, she also went further and referred a dispute to the CCMA in terms of section 186(2) of the LRA. Therefore, by referring this dispute, the plaintiff exercised her LRA right, which brings the claim squarely within section 187(1)(d). It is irrelevant whether her unfair labour practice dispute has prospects or not, as long as the dispute or claim is not frivolous or vexatious or the referral was not made mala fide.

26] Therefore, based on the test as formulated in Afrox, explicated in Baxter and endorsed in Aveng, the question is whether the plaintiff’s dismissal would have occurred if she had not referred the unfair labour practice dispute to the CCMA. If the dismissal would have occurred, the plaintiff’s claim should fail. If not, the next question is whether the referral of the unfair labour practice dispute was the main, dominant, proximate or most likely cause for the dismissal. If the latter question is answered in the positive, the plaintiff’s claim should succeed.

37] Dismissing an employee for exercising her legal right using a disguised reason amounts to a misrepresentation of the true reason for the dismissal. The employer knows that the true reason is against the law and/or unsustainable and unfair and deliberately manufactures another reason to dismiss the employee

Unfair discrimination (see also automatically unfair dismissal)

Arbitrary treatment or differentiation between employees not

the proceedings were stayed and the dispute was referred to arbitration under the auspices of the CCMA.

JS623/07

Chizunza v MTN (Pty) Ltd & Others

Arbitrary treatment or differentiation between employees not

Other case law cited

Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC).

JS623/07

Chizunza v MTN (Pty) Ltd & Others

Court found employees non-disclosure of pregnancy at a time of application of employment was most likely cause of dismissal dismissal automatically unfair

JS844/07

Swart v Greenmachine Horticultural Services (A division of Sterikleen (Pty) Ltd)

Onus is listed ground and to establish discrimination and proving was unfair

JR2421/04

Matjhabeng Municipality v Mothupi NO and Others

HIV

Interview health not stated

Inhirent job requirements not shown

JS 178/09

Allpass v Mooikloof Estates (Pty) Ltd

sexual

superior (Minett) had spoken to her in a manner which she found sexually objectionable

employer had no control over circumstances which could have made conditions intolerable for the employee, and as such the critical circumstances were not of the employers making. Employer had to be culpably responsible

JR184/07

Daymon Worldwide SA Inc v CCMA & Others

sexual

Other case law cited

Murray v Minister of Defense [2008] 6 BLLR 513 (SCA), the conduct of the employer must have lacked reasonable and proper cause.

JR184/07

Daymon Worldwide SA Inc v CCMA & Others

Belief

Employees strong convictions against extra marital affairs

187(1)(f)

JS278/07

Zabala v Gold Reef City Casino

Belief

Other case law cited

Harksen v Lane & Others 1998 (1) SA 300 (CC) in which the test

JS278/07

Zabala v Gold Reef City Casino

Unfair discrimination claim failure to promote

If black candidates deemed unsuitable, unfair not to have appointed employee

JS455/07

Solidarity obo Barnard v South African Police Services

As to factual causation, the test

As to factual causation, the test was whether the employee would have been dismissed but for his participation in, in this instance, MADAM. Once this was answered in the positive, the second question was whether such participation was the main or dominant, or proximate or most likely, cause of the dismissal (legal causation).

C627/07

Jansen v The Minister of Correctional Services of the Republic of South Africa

alleged discrimination based on retirement age

non-existence of the policy regarding retirement

JS600/07

Attonio Lino Menteiro Cosme v Polisak (Pty) Ltd

Race discrimination

Employment

own policy correctly, in that the policy itself stipulated that merit had to be considered in appointments when ratio targets had already been met.

JA36/08

University of South Africa v Reynhardt

Race discrimination; test

Other case law cited

Harksen v Lane NO 1997 (4) SA 1 (CC).

JA36/08

University of South Africa v Reynhardt

Race discrimination; test

Other case law cited

Minister of Finance and another v Van Heerden 2004 (6) SA 121 (CC),

The CC had held that equality was a foundational principle, but remedial measures were needed for its achievement.

JA36/08

University of South Africa v Reynhardt

Automatically unfair dismissal

transsexual

damages

JS296/09

Ehlers v Bohler Uddeholm Africa (Pty) Ltd

Pregnancy

Employer responsible to give her access to landlord's workplace

D582/08

Memela and Another v Ekhamanzi Springs (Pty) Ltd

basis of race

affirmative action targets reached

Black owner white candidate preferred, discrimination

JS 1061/02

Reynhardt v University of South Africa

Harassment

No liability established in terms

60 of EEA

JS700/05

Potgieter v National Commissioner of the South African Police Service & Another

Harassment

Other case law cited

Mokoena & Another v Garden Art Ltd & Another [2008] 5 BLLR 428 (LC)

60 of EEA

JS700/05

Potgieter v National Commissioner of the South African Police Service & Another

Unfair discrimination dispute; applicant failing to disclose gender reassignment; evidential burden raised possibility that automatic unfair dismissal had taken place

JS02/07

Atkins v Datacentrix (Pty) Ltd

National and Regional demgrafics had to be taken into account, Discrimination not protected ito section 6(2) EEA

C 368/2012

Solidarity v Department of Correctional Services

SEXUAL HARASSMENT

CA 14/2014

CAMPBELL SCIENTIFIC AFRICA (PTY) LTD

Far from not being serious Mr Simmers capitalised on Ms Markides isolation in Botswana to make the unwelcome advances that he did. The fact that his conduct was not physical, that it occurred during the course of one incident and was not persisted with thereafter, did not negate the fact that it constituted sexual harassment and in this regard the Labour Court erred in treating the conduct as simply an unreciprocated sexual advance in which Mr Simmers was only trying his luck

SA Broadcasting Corporation Ltd v Grogan NO and Another,[13] Steenkamp AJ (as he then was) observed that sexual harassment by older men in positions of power has become a scourge in the workplace. In Gaga v Anglo Platinum Ltd and Others,[14] this Court noted similarly that the rule against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinate

SEXUAL HARASSMENT

JR855/2012

Doctors Dietrich Voigt Mia trading as Pathcare v Roopa N.O. and Others (JR855/2012) [2016] ZALCJHB 37 (25 January 2016)

that he suggested that they should go to the toilet together and, ultimately, when she rejected his advances, he left.

Commissioner failed to take cognisance of a pattern of behaviour on the part of the employee where evidence was given of conduct similar to that which the employee was accused of

Retirememt age

JS710/13

Harris v Ocean Traders International (Pty) Ltd (JS710/13) [2016] ZALCJHB 63 (23 February 2016)

It seems rather improbable that the company would have effectively covered all employees for a period of five years beyond the normal retirement age as a matter of course, if most of them were due to retire five years earlier at 60. In my view, the balance of probabilities favour the version that when the applicant was employed, the understanding between him and the respondent was that he would retire at age 65.

sixteen months remuneration would be just and equitable compensation.

Demotion

JR2498/13

Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015)

The commissioner simply accepted the employers prerogative to redeploy the employee at the insistence of Rand Refinery, without considering whether it amounted to a demotion. In so doing, he misconceived the nature of the enquiry

Cf Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services [2008] 12 BLLR 1179 (LAC) para [88] (per Zondo JP); SAPS v Salukazana [2010] 7 BLLR 764 (LC); (2010) 31 ILJ 2465 (LC).

insistence of a client, invalid

JR2498/13

Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015)

commissioner simply accepted the employers prerogative to redeploy the employee at the insistence of Rand Refinery, without considering whether it amounted to a demotion. In so doing, he misconceived the nature of the enquiry.

Mahlamu v CCMA (2011) 32 ILJ 1122 (LC) paras [22] [25]. See also SATAWU obo Dube v Fidelity Supercare Cleaning Services Group (Pty) Ltd [2015] ZALCJHB 129.

contracting out of the right not to be unfairly dismissed is not permitted by the Act

Disability: mentally able to work, but not facially acceptable

JS787/14

Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016)

[70]In all of the above circumstances, the discrimination by the respondent against the applicant would resort comfortably within the realm of what can be described to be unfair discrimination...Awarded: a total period of 30(thirty) months, the applicant is awarded R1 540 199.40 in damages and compensation.

Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1239 (LC).

The search for accommodation is a multi-party enquiry. Although the principal responsibility for conducting the enquiry rests with the employer, at the very least the employer must confer with the disabled employee, her trade union or workplace representative. To the extent that the employer needs information that it does not have, such as medical reports, it must also consult with medical or other experts and possibly other employees. Disregarding medical advice to accommodate an employee is discrimination. The process should be interactive, a dialogue, an investigation of alternatives conducted with a give and take attitude. Outright refusal to accommodate shows a degree of inflexibility contrary to the spirit and purpose of the duty to accommodate.

Unjustifiable hardship means '[m]ore than mere negligible effort'. Just as the notion of reasonable accommodation imports a proportionality test, so too does the concept of unjustifiable hardship. Some hardship is envisaged. A minor interference or inconvenience does not come close to meeting the threshold but a substantial interference with the rights of others does.

Retirement age

JS219/15

Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016)

[40] In short, and in casu, the terms and conditions of employment specifically applicable to the applicant made no provision for a retirement age. Unilaterally introducing a retirement age in such circumstances would amount to a unilateral change in employment conditions, which is not permitted. The applicant was clear in her evidence that she did not want to retire and could still properly discharge her duties. She certainly, even in 2014, never acquiesced to the application of a specified retirement age to her. If the respondent wanted to change the situation with regard to the retirement age applicable to the applicant, as Finkelstein had in mind in 2014, it needed to negotiate with the applicant to try and secure an agreement.[33]

Rubin Sportswear v SA Clothing and Textile Workers Union and Others (2004) 25 ILJ 1671 (LAC) at para 24.

retirement age

JS171/2014

Lyall v City of Johannesburg (JS171/2014) [2017] ZALCJHB 461 (22 November 2017)

[40] The respondent through evidence established that at the time of the retirement of the applicant the respondent had a normal retirement age in place....[58] The applicant has not pleaded any such case. I have already indicated that an employer is at liberty unilaterally to introduce a retirement age and to act in accordance with the retirement age. Of course, the employer cannot make such a retirement age retrospective or apply it in breach of an agreement with an employee. The applicant has not shown any agreement to the contrary. There is no substance in this submission...[44] The applicant was unable to testify as to the date when the parties entered into this agreement. He relied upon events that "built upon themselves" and culminated in an "agreement".

sexual harassment: section 60 of the EEA

JA105/2015

Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19; (2017) 38 ILJ 1318 (LAC); [2017] 10 BLLR 991 (LAC) (7 March 2017)

made unwarranted comments to her, touched her body, massaged her shoulders and stood too close to her. She asked him to stop but he did not...2. The appellant pays to the respondent the sum of R250 000 as damages.

See Cooper, C Harassment on the Basis of Sex and Gender: A Form of Unfair Discrimination 2002 ILJ (23) at 1.

[32] In treating harassment as a form of unfair discrimination in s 6(3),[4] the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employees rights, violating that persons dignity and limiting their right to equality at work.[5]

Matambuye v MEC for Education and Others [2015] ZALCJHB 455 at para 22.

the Labour Court noted that it was not required to decide whether s 60 (2) refers to steps the employer must take immediately following a report of harassment and whether subsection (4) refers to reasonable steps that the employer must take in advance to eliminate and prevent acts of unfair discrimination.

Biggar v City of Johannesburg, Emergency Management Services [2011] 6 BLLR 577 (LC).

the Court found that the employer had failed to take all necessary steps to eliminate racial abuse perpetrated by its employees and to have failed to do everything reasonably practicable to prevent continued harassment. This followed sustained racial harassment of the applicant and his family by co-employees in residential premises provided by the employer.

Potgieter v National Commissioner of the SA Police Service and Another (Potgieter ) (2009) 30 ILJ 1322 (LC) at para 46.

the requirements for employer liability to arise under the EEA where the complaint raised is one of sexual harassment. These are that:(i) The sexual harassment conduct complained of was committed by another employee.(ii) It was sexual harassment constituting unfair discrimination.(iii) The sexual harassment took place at the workplace.(iv) The alleged sexual harassment was immediately brought to the attention of the employer.(v) The employer was aware of the incident of sexual harassment.(vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.(vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.

differentiation on geographical grounds and that it was unfair

CA10/2016

Minister of Correctional Services and Others v Duma (CA10/2016) [2017] ZALAC 78 (23 June 2017)

[14] It follows therefore that, in this case, respondent was required to show that the conduct complained of clearly amounted to a differentiation on geographical grounds and that it was unfair, on the basis of principles set out in the dictum in Hoffmann, supra; hence the practice was not rational and impaired her dignity.

Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd and Others (1998) ILJ 285 (LC) and SA Airways (Pty) Ltd v Janse van Vuuren and Another (2014) 35 ILJ 2774 (LAC) at para 41

discrimination is unfair if it is reprehensible in terms of the societys prevailing norms. Whether society will tolerate the discrimination depends on what the object is of the discrimination and the means used to achieve it. The object must be legitimate and the means proportional and rational

Hoffmann v SA Airways (Hoffmann) 2001 (1) SA 1 (CC).

At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant consideration in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interest of the victim of the discrimination have been affected and whether the discrimination has impaired the human dignity of the victim.

Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC).

Discrimination on a particular ground means that the ground is the reason for the disparate treatment complained of. The mere existence of disparate treatment of people, for example, different races is not discrimination on the ground of race unless the difference in race is the reason for the disparate treatment. Put differently, for the applicant to prove that the difference in salaries constitutes direct discrimination, he must prove that his salary is less than Mr Benekes salary because of his race.

disability in terms of section 187(1)(f) of the LRA

JA104/2015

Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017)

evidence reveals that employer had discriminated against the employee because of her bipolar disorder.

"unfairness"

JR350/16

Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB 48 (9 January 2018)

Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013).

Du Toit et al: The Labour Relations Act of 1995; 2nd edition at page 443.

... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 54

a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:(i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).

social origin or citizenship

JS533/16

Khumalo v University of Johannesburg (JS533/16) [2018] ZALCJHB 31 (6 February 2018)

valid workvisa/permanent residence of this country

to the extent that she was not a South African citizen, and further to the extent that the provisions of clause 10 of the offer of employment had not been complied with, the University was therefore within its rights to invoke the provisions of clause 15 of the offer of employment.

Section 11 of the Employment Equity Act.

In terms of section 11 of the Employment Equity Act (The EEA), the burden of proof is placed on the employer in every case where unfair discrimination based on the Equity Act is alleged, to establish that the discrimination did not take place or where it did, it was fair

differentiation

JS744/16

South African Municipal Workers Union and Others v Pikitup Johannesburg (Soc) Ltd (JS744/16) [2017] ZALCJHB 183 (7 February 2017)

[6] The relevant legal principles are clear a mere differentiation does not necessarily constitute an act of discrimination. Discrimination occurs when the differentiation has as its basis one of the specified listed grounds referred to in s6, all an unspecified or analogies ground, or an arbitrary ground, referred to in the section. The pleading in a claim such as the present and must necessarily establish the differentiation and the basis on which the claim is made, in other words, a link between the differentiation and a specified an unspecified ground. Where reliance is placed on the latter, it is not sufficient to contend that the policy or practice complained of is arbitrary. The case must necessarily be made is analogous to a specified ground and based upon or shares a common trend with a specified ground and in particular, that it exhibits attributes or characteristics which have the potential to impair the fundamental dignity of the applicants as human beings

Ntai v South African Breweries Ltd [2001] 2 BLLR 186 (LC). See also Mangena v Fila South Africa (Pty) Ltd [2009] 12 BLLR 1224 (LC)

ground of discrimination

JS454/16

Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)

[44]I have already addressed the fact that this is a right provided and enforced by sections 5 and 9 of the LRA respectively. Furthermore, the applicant does not identify an arbitrary ground of the type mentioned in section 6(1) of the EEA as the ground of discrimination. In this regard, I appreciate that the applicant appears to believe that any perceived unfair treatment can be classed as an act of discrimination. However, even harassment under s 6(3) of the EEA is only unfair discrimination if it is on one or more of the grounds listed in s 6(1).

the reason for his dismissal was that he was HIV positive or for incapacity

JS778/1

N v Sky Services (Pty) Ltd (JS778/15) [2018] ZALCJHB 278; [2019] 5 BLLR 504 (LC) (21 August 2018)

[51] In the current case, the applicants case is that he was dismissed because he was HIV positive. His allegation was based on the assumption that his colleague, Mr John Ramotsaletsi, informed the respondents management of his HIV status. Although the applicant submitted proof that he was HIV positive, he could not show that the respondent was aware of his HIV status.

IMATU v City of Cape Town [2005] 11 BLLR 1084 (LC).

80. The approach to unfair discrimination to be followed by our courts has been spelt out in Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC). Although the Harksen decision concerned a claim under section 9 of the Constitution (the equality clause), there is no reason why the same or a similar approach should not be followed under the EEA. 81. The Harksen approach contains a specific methodology for determining discrimination cases. The first enquiry is whether the provision differentiates between people or categories of people. If so, does the differentiation bear a rational connection to a legitimate governmental purpose? If it does not, then there is a violation of the guarantee of equality. Even if it does bear a rational connection, it might nevertheless amount to discrimination. The second leg of the enquiry asks whether the differentiation amounts to unfair discrimination. This requires a two

jurisdiction

Wardlaw v Supreme Moulding (Pty) Limited [2007] 6 BLLR 487 (LAC).

[23] The significance of sec 191(5)(a) and (b) seems to be this. What is contemplated by the scheme of the Act is that, if the employee has alleged a certain reason as the reason for dismissal and that reason is one that falls within sec 191(5)(b) and the Court does not at any stage think that that reason is not the reason for dismissal, the Court proceeds to adjudicate the dispute and delivers a judgement. Where as a reason for dismissal, the employee has alleged a reason that falls within sec 191(5)(b), the Court provisionally assumes jurisdiction but, if the Court later takes the view or it later becomes apparent to the court that the reason for dismissal is one that falls under sec 191(5)(a), it then declines jurisdiction and follows the sec 158(2)(a) or (b) route.

alleging discrimination based on pregnancy (CCMA appeal in terms of s 10(8) of the Employment Equity Act)

J698/15

Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018)

Lewis v Media 24 Ltd (2010) 31 ILJ 2416 (LC) paras 36-37.

The concept of discrimination is made up of three issues: differential treatment; the listed or analogous grounds; and the basis of, or reason for, the treatment. Once a difference in treatment is based on a listed ground, the difference in treatment becomes discrimination for the purposes of section 9 of the Constitution and section 6 of the EEA.The first issue concerns the difference in treatment. There must be a difference in treatment in which the employee is less favourably treated than others. In some instances, this may require a comparison between the victim and a comparator the so-called similarly situated employee. In other instances, it may be evident that the employee is treated differently from others precisely because of the targeted nature of the treatment, for example sexual harassment or trade union victimisation.

had misdirected itself by upholding a case not advanced by the employee

CCMA pay differentiation based on race

J2680/16

Sasol Chemical Operations (Pty) Ltd v CCMA and Others (J2680/16) [2018] ZALCJHB 433; [2019] 1 BLLR 91 (LC); (2019) 40 ILJ 436 (LC) (29 August 2018)

[29] The employee simply failed to present evidence which is sufficient to raise a credible possibility that unfair discrimination based on race had taken place. The Commissioners finding to the contrary is based on the wrong premise and is not connected to the evidence before him. It cannot stand on appeal.

Rustenburg Platinum Mine v SAEWA obo Bester and Others (2018) 39 ILJ 1503 (CC); 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC) par [46] [47].

[30] If the employer cannot find them suitable alternative employment, the maternity policy kicks in. In this case, there were no suitable alternative positions available for the complainants. And in those circumstances, there was no further duty on the employer to create non-existent positions for them. The employer acted lawfully, rationally and in accordance with its own policy.

social origin

JS1032/12

Maraba and Others v Tshwane University of Technology (JS1032/12) [2019] ZALCJHB 209 (23 August 2019)

[32] It must be emphasized that the applicants are alleging unfair discriminatory grounds which are specified, as contained in section 6 (1) of the EEA as they contend that they were being discriminated against based on their social origin because Ms Kloppers was from a well-resourced institution, the then Pretoria Technikon as they are from previously less disadvantaged institutions which formed the respondent. Further, the applicants are explicitly concerned with the particular position, which is of a Professional Nurse. As stated above, the minute unfair discrimination is alleged based on a specified ground and the employer who is being accused of discrimination has the onus to proof that either no discrimination took place, and/ or such discrimination is justified.

[29] Langa CJ, writing for the majority, in City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 held that:"This Court has consistently held that differentiation on one of the specified grounds referred to in section 8(2) gives rise to a presumption of unfair discrimination. The presumption which flows from section 8(4) applies to all differentiation on such grounds".[5][30] Moseneke DCJ, in South African Police Service v Solidarity obo Barnard[6], reiterated that:"remedial measures must be implemented in a way that advances the position of people who have suffered discrimination."[31] The Constitutional Court[7] ,by Langa DP writing for the majority, in an unfair discrimination dispute signposted thus,"Courts should however always be astutely to distinguish between genuine attempts to promote and protect equality on the other hand action is calculated to protect pockets of privilege enterprise which amounts to the perpetuation of inequality and this advantage to others on the other handAndThe inclusion of both direct and indirect discrimination within the ambit of the prohibition imposed by section 8 (2) evinces a concern for the consequences rather than the form of conduct."[8]

[34] If one were to accept, as argued by the respondent, that the decision to uncap salaries of those who were earning more should be classified as "exceptional circumstances" and that it was for the benefits "for all", this triggers a question of whether those who were earning more "are those people who have suffered discrimination". The answer to this question is no. Therefore, the action that was taken by both the unions and the respondent, which was implemented by the latter, cannot be classified as a justifiable ground of discrimination. Under those circumstances, the respondent unfairly discriminated against the applicants based on remuneration as a result of their social origin because their former institutions were previously based in the historically disadvantaged institutions which were under- resourced, as the respondent failed to present a justifiable ground for its conduct. The respondent's action amounts to "perpetuation of inequality and this advantage to others on the other hand". However, I conclude that discrimination based on race is not founded under the circumstances and the facts of this case.

mental impairment and persistently ignored his grievances.

JA5/18

Rapoo v Rustenburg Local Municipality (JA5/18) [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC) (20 February 2020

[13]...The appellant has on several occasions produced medical reports saying that he was unfit. The municipality clearly had a problem with his continued absences. However, the municipality has failed to move him to a different unit to report under a different manager for at least six months while he continued his therapy. Clearly the municipality has failed to comply with Code of Good Practices on the Employment of People with Disabilities under the EEA, the Constitution of the Republic of South Africa, International and foreign law as well as best practices.There is no doubt in my mind that the Municipality avoided to deal with the [appellants] mental impairment and persistently ignored his grievances. The approach adopted by the Municipality in dealing with the [appellants] disability, was it itself, a discriminatory practice. I therefore find that the Municipality discriminated against the [appellant].

Arbitrary grounds: A fair reading of these averments reveals that the critical allegation is that a group of persons have been given preferential treatment based on their affinity with Van der Spuy who is a fan of the SAPS: in a word, this is nepotism.

CA4/2019

Naidoo and Others v Parliament of the Republic of South Africa (CA4/2019) [2020] ZALAC 38; (2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (7 May 2020)

[27] Accordingly, the decision by the Prinsloo J in the Court a quo to apply the narrow compass interpretation of the phrase any other arbitrary ground in section 6(1) is endorsed by this Court.

Nepotism, in any case, cannot be countenanced, even more so in the case of Parliament. However this court is required to determine this dispute in terms of the EEA and nepotism is not a necessary affront to human dignity, in neither the sense contemplated by section 9 of the Constitution, nor in section 6 (1) of the EEA. To be neglected because of nepotism implies no characteristic of a person so victimised nor does it invoke any pejorative perspective of such person, whether inherent or adopted. Nepotism differs from, for example racism, where the bearer of authority or of power rejects X because of Xs race and prefers Y because of Ys race. If what Van der Spuy has done is indeed to prefer his chums to the appellants; ie behaved nepotistically, that conduct, however wrongful, is not unfair discrimination within the purview of section 6(1).

[20] In the Court a quo, Prinsloo J followed the approach in Harksen v Lane NO and as illustrated in Ndudula v Metrorail. Accordingly, it was held that:[31] . I am inclined to follow, in fact I am bound to follow Pioneer Foods[5] and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence.

Inhirent requirements of the job: Unfair discrimination based on disability

CA01/201

City of Cape Town v South African Municipal Workers Unions obo Damons (CA01/2019) [2020] ZALAC 9; (2020) 41 (ILJ) 1893 (LAC); [2020] 9 BLLR 875 (LAC) (18 May 2020)

South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) at para 54

The contention on behalf of the appellant that the age of a pilot was an inherent requirement of the work of a pilot was not convincing at all. It is so that if the appellant had established as a fact that there first respondent had been discriminated against on the basis of his age, because age was an inherent requirement of the job of a pilot it might well have discharged its onus, because in terms of s 6 (2) (b) of the EEA it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. However, in this case, there was no evidence by the appellant that age was an inherent requirement of the job of a pilot. (my emphasis)

[18] These provisions indicate that a disabled employee cannot be discriminated against other employees who do the same work and, to that specific extent that the doctrine of reasonable accommodation applies. A policy must be designed to reduce the impact of the impairment of the persons capacity to fill the essential functions of the job. But in this case, it is not possible for Damons to perform the essential requirements of an active firefighter nor could it possibly be in the public interest to have firefighters who are not capable of dealing with the outbreak of fires which, in the area of jurisdiction of the appellant, are notoriously frequent.

60 of the Employment Equity Act 55 of 1998 (EEA) for discrimination (indirect racial discrimination) perpetrated by a customer against the employee on the grounds of the latters race.

CA15/18

Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; 2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020)

Mokoena and another v Garden Art (Pty) Ltd and another [2007] ZALC 90; [2008] 5 BLLR 428 (LC) at para 40

1. The conduct must be by an employee of the employer. 2. The conduct must constitute unfair discrimination. 3. The conduct must take place while at work. 4. The alleged conduct must immediately be brought to the attention of the employer. 5. The employer must be aware of the conduct. 6. There must be a failure by the employer to consult all relevant parties, or to take the necessary steps to eliminate the conduct or otherwise to comply with the EEA, and 7. The employer must show that it did all that was reasonably practicable to ensure that the employee would not act in contravention of the EEA.

harassment, victimisation and bullying must relate to one of the listed or other arbitrary grounds

CA15/18

Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; 2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020)

18] Appellant lodged a cross-appeal against this decision. Before the court a quo, appellants counsel argued that the third respondent ought to have found that the first respondent was liable for unfair discrimination on the ground of bullying, harassment and victimisation on the basis that it had been sufficiently proved by the evidence presented by appellant.[19] It appears that the finding that these actions were not based on race was not challenged. Thus the court a quo found that the appellant had not shown that the harassment was based on a listed or other arbitrary ground. Hence she had not shown the presence of unfair discrimination as defined in the EEA.

[22] Section 11 of the EEA makes it clear an allegation of that harassment must be coupled to conduct based on a discriminatory ground. This section reads thus:(1) If unfair discrimination is alleged on a ground listed in s 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination (a) did not take place as alleged; or(b) is rational and not unfair; or is otherwise justifiable.(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that (a) the conduct complained of is not rational;(b) the conduct complained of amounts to discrimination; and(c) the discrimination is unfair.

[23] There is a burden placed upon the appellant to show, on a balance of probabilities, that the conduct alleged by her was not rational, that it amounts to discrimination and that the discriminatory practice was unfair. An allegation of harassment, even if indeed it can be shown to exist on its own and of itself, cannot and does not meet the requirements as set out in s 6(3) read together with s 11 of the EEA. More is required before an employer such as the first respondent can be held liable in terms of the EEA, where, as in the case brought by appellant, that is based on an arbitrary ground. So much is clear from the wording of s 11(2) of the EEA.

[26] In summary, no evidence which the appellant was able to produce discharged the onus that she had been harassed on an arbitrary ground which would bring the first respondents conduct within the scope of the EEA. Furthermore, there was evidence, which was not challenged, that efforts had been made on a number of occasions by management of first respondent to ensure that behaviour of which the appellant complained was dealt with and that the perpetrators were suitably rebuked. This was not a case where management adopted a passive stance to the complaints lodged by appellant.

whether differentiation amounts to unfair discrimination requires a two-stage analysis

JA117/2018

Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines) (JA117/2018) [2020] ZALAC 14; [2020] 8 BLLR 749 (LAC); (2020) 41 (ILJ) 1910 (LAC) (18 May 2020)

Harksen v Lane NO & others [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) para 53.

(i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

[23] It is apparent from the facts that in its treatment of the appellant, the respondent differentiated between the appellant and other employees. This differentiation arose on the basis of her pregnancy for a second occasion in a three-year cycle. The respondent failed to show that the discrimination was rational and not unfair or was otherwise justifiable. In the circumstances, the conclusion is inescapable that the respondents decision in refusing to place the appellant into alternative employment with effect from 4 June 2014, prior to her unpaid maternity leave scheduled to commence on 29 November 2014, constituted an act of unfair discrimination.

age

JA 86/18

BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC) (18 May 2020)

employees retirement age changed from 65 to 60---Whether employee consented to change ---Employees conduct and unchallenged evidence leading to finding that he did not consent to the change--- evidence indicating that employee never received the election form to indicate whether to retire at age 65 or 60 ---BMW (SA) (Pty) Ltd v NUMSA and Another (2019) 40 ILJ 305 (LAC) distinguished --- Dismissal automatically unfair- on account of age discrimination.

[49] Mr Deppe contends that his dismissal was automatically unfair in terms of section 187(1)(f)[7] of the LRA as the reason for the dismissal is that BMW unfairly discriminated against him on the grounds of his age by forcing him to retire at 60 years of age, when his agreed retirement age was 65.

[54] The provisions of section 187(2)(b) of the LRA relating to the normal retirement age only apply to the case where there is no agreed retirement age between the employer and the employee. In this case, Mr Deppe was dismissed before reaching his contractually agreed age of retirement which was 65. Therefore, the provisions of section 187(2)(b) of the LRA relating to the question of a normal retirement age have no application.[9]

Depression: misconduct or incapacity: most immediate, proximate, decisive or substantial cause of the dismissal

CA3/2019

Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC); [2020] 11 BLLR 1103 (LAC) (21 July 2020)

[2] Section 187(1)(f) of the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, inter alia on grounds of disability and/or an analogous arbitrary ground. Section 6 of the EEA includes a similar prohibition. The respondent maintains that the dominant reason for his dismissal was the fact that he was suffering depression.

[41] In the first instance, depression must be looked at as a form of ill health. As such, an incapacitating depression may be a legitimate reason for terminating the employment relationship, provided it is done fairly in accordance with a process akin to that envisaged in Items 10 and 11 of the Code of Good Practice: Dismissal.[8] If an employee is temporarily unable to work for a sustained period due to depression, the employer must investigate and consider alternatives short of dismissal before resorting to dismissal. If the depression is likely to impair performance permanently, the employer must attempt first to reasonably accommodate the employees disability. Dismissal of a depressed employee for incapacity without due regard and application of these principles will be substantively and/or procedurally unfair.

[42] Depression may also play a role in an employees misconduct. It is not beyond possibility that depression might, in certain circumstance negate an employees capacity for wrongdoing. An employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness. Should the evidence support such a conclusion, dismissal for misconduct would be inappropriate and substantively unfair, and the employer would need to approach the difficulty from an incapacity or operational requirements perspective. Alternatively, where the evidence shows that the cognitive and conative capacities of an employee have not been negated by depression, and he is able to appreciate the wrongfulness of his conduct and act accordingly, his culpability or blameworthiness may be diminished by reason of the depression. In which case, the employees depression must be taken into account in determining an appropriate sanction. A failure to properly take account of depression before dismissal for misconduct could possibly result in substantive unfairness.

[43] Conative ability is a question of fact and an employee denying conative ability, as the respondent in effect does, bears an evidentiary burden to prove the factual basis of the defence. To hold otherwise would unduly undermine the managerial prerogative of discipline where misconduct is committed by employees suffering all manner of mental difficulties such as depression, anxiety, alcoholism, grief and the like. As explained, the fact that an employee was depressed, anxious, grieving or drunk at the time of the misconduct (but not entirely incapacitated thereby) is most appropriately viewed as a potential mitigating factor diminishing culpability that may render dismissal for misconduct inappropriate or may require an incapacity investigation before dismissal. That much is trite.

[46] Accepting thus that the respondent was depressed and had been suffering from depression since 2011, he nonetheless remained reasonably functional and able to carry out his duties throughout most of that period. He was not wholly incapacitated. Moreover, the appellants policy was merely to require employees compelled to take sick leave to advise the appellant of the fact that they would not be reporting for duty.

[48] It may well be that but for his depression factually (conditio sine qua non) the respondent might not have committed some of the misconduct; but, still, he has not presented a credible possibility that the dominant or proximate cause of the dismissal was his depression. The mere fact that his depression was a contributing factual cause is not sufficient ground upon which to find that there was an adequate causal link between the respondents depression and his dismissal so as to conclude that depression was the reason for it. The criteria of legal causation, it must be said, are based upon normative value judgments. The overriding consideration in the determination of legal causation is what is fair and just in the given circumstances. One must ask what was the most immediate, proximate, decisive or substantial cause of the dismissal. What most immediately brought about the dismissal? The proximate reason for the respondents dismissal was his four instances of misconduct. It was not his depression, which at best was a contributing or subsidiary causative factor.

age

JS 740/18

NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)

Rockliffe v Mincom (Pty) Ltd[(2007) 28 ILJ 2041 (LC).]. The Court concluded thus: -Clearly the letter says the basis for termination is age. On the face of it unless justified it is automatically unfair (s 187(1) (f)). In my view there is evidence to raise a credible possibility that an automatically unfair dismissal has taken place.

[22] For an employer to avoid the consequences of the presumed unfair discrimination, such an employer must show either one of two things, namely; (a) the dismissed employee had reached the normal retirement age or (b) the employer and the employee agreed on a particular age and that age was reached.

Cash Paymaster Services (Pty) Ltd[(2006) 27 ILJ 281 (LAC).]:[25] The retirement age dispensation provided for in s 187(2)(b) of the Act is one that works on the basis that, if there is an agreed age between an employer and an employee, that is the retirement age that governs the employees employment. This is the case even when there is a different normal retirement age for employees employed in the capacity in which the employee concerned is employed. The provision relating to the normal retirement age only applies to the case where there is no agreed retirement age between the employer and the employee.

[23]...With regard to the instance of onus, the dismissed employees bore the onus to show that age 65 was the agreed age whilst the respondent bore the onus to show that the agreed age was 60...[24] There is no dispute between the parties that when the dismissed employees commenced employment, the agreed age for retirement was 65 years. It is also common cause that during 1995, the retirement age was changed from 65 to 60. The dismissed employees contend that in effecting the change, the employer did not seek nor obtain their consent. It is indeed so that the dismissed employees did not expressly consent to the change

Outomatical Unfiar dismissal and Unfir discrimination need to be referred to conciliation

JS 740/18

NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)

[73] In terms of section 10 (1) of the EEA, disputes about an unfair dismissal are excluded in the chapter. Therefore, a referral of an unfair dismissal dispute does not include a referral of an unfair discrimination dispute. It is by now settled law that this Court lacks jurisdiction to entertain a dispute if same has not been referred to conciliation as required by the EEA. Accordingly, these claims ought to be dismissed for want of jurisdiction.

work of the two was work of equal value.

JS741/17

Moloko v Tshwane Economic Development Agency (JS741/17) [2020] ZALCJHB 237 (22 October 2020)

[18] The next aspect up for consideration is whether the difference in remuneration was rational as contemplated in section 11(2) of the Employment Equity Act. The evidence of Mafela is that it was not rational because there was no basis for it. The only explanation is that they were remunerated on the basis of some percentage based on what they earned from their previous employer. As to what informed the percentage, it is unclear. This piece of evidence is largely hearsay and no one was called to testify in support of such claim. To demonstrate that this explanation cannot hold, a similar complaint by the Executive Managers was attended to without any difficulties. Besides, the fact that it is irrational was long recognized by Mafela and Liebenberg who recommended that his salary be adjusted. In the memorandum dated 7 February 2017 addressed to Magaledi, his only concern was effect on the figures (budget) that will be caused by the adjustment. He desired a calculation in rands and cents which is a prudent thing to do. At no stage did he demonstrate his disapproval based on any factor whatsoever. All the other senior executives to whom the copy was circulated, answered in the positive for an adjustment.

differentiation: race irt promotoon of white persons

JS803/17

Police and Prisons Rights Union and Others v Minister of Police and Another (JS803/17) [2021] ZALCJHB 41 (1 March 2021)

[21] In my view, the applicants compliant does not meet the test in Harksen[11] which clearly states that if differentiation is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. Stated otherwise, the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted.[12]

[18] The pivotal enquiry in this regard is the scope of construction phrase any other arbitrary ground in section 6(1) of the EEA. The applicants contend that this phrase must be accorded a wide interpretation on the strength of the dictum in Chitsinde v Sol Plaatje University [[2018] 10 BLLR 1012 (LC) at para 31.] which seemingly endorsed the obiter in Kadiaka v Amalgamated Beverage Industries,[(1999) 20 ILJ 373 (LC)] where the Court endorsed the view that the 2013 EEA amendments introduced a self-standing ground of arbitrariness which meant capriciousness. This approach was rejected for a narrow construction in Pioneer Foods (Pty) Ltd v Workers[(2016) 37 ILJ 2872 (LC).] and Ndudula and Others v Metrorail Prasa (Western Cape).[(2017) 38 ILJ 2565 (LC); see also: Sethole v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC) at paras 72, 84, and 85. ]

[19] In Naidoo and Others v Parliament of the Republic of South Africa,[(2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (Naidoo II)] the Labour Appeal Court settled this debate by endorsing a narrow construction and upheld the approach followed by the Court a quo, per Prinsloo J,[See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31] in line with Harksen v Lane NO.[9] The LAC pertinently made the following observations:

[19] In Naidoo and Others v Parliament of the Republic of South Africa,[7] the Labour Appeal Court settled this debate by endorsing a narrow construction and upheld the approach followed by the Court a quo, per Prinsloo J,[8] in line with Harksen v Lane NO.[1998 (1) SA 300 (CC).] The LAC pertinently made the following observations:Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is any other arbitrary ground and not the word arbitrary, free from its context and function. In this context the word arbitrary is not a synonym for the word capricious. The injunction in section 6(1) is to outlaw, not arbitrariness, but rather to outlaw unfair discrimination that is rooted in another arbitrary ground (the syntax of any other cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a ground must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity. The authors express this view, with which I agree:Discrimination is about infringement of dignity (or a comparably serious harm), about an identifiable and unacceptable ground and about the link directly or indirectly) between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.[10] (Emphasis added)

See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31

I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence. (emphasis added)

Social origin

JA110/201

Tshwane University of Technology v Maraba and Others (JA110/2019) [2021] ZALCJHB 56 (17 May 2021)

Section 6(1) of the EEA expressly prohibits direct or indirect unfair discrimination against an employee on grounds which include social origin

Social origin in international human rights treaties refers to a persons inherited social status, descent-based discrimination by birth and economic and social status.[3] Discrimination on this ground has been defined by the Committee of Experts of the International Labour Organisation (ILO) to include discrimination on the basis of class, caste or socio-occupational category.[4]

[14] The test for unfair discrimination set out in Harksen v Lane NO and others[Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC) at para 50.] applies equally to discrimination claims in labour law.[Mbana v Shepstone & Wylie [2015] ZACC 11; 2015 (6) BCLR 693 (CC); (2015) 36 ILJ 1805 (CC) at para 25.] The first step is to establish whether the appellants policy or practice differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in section 9 of the Constitution, it is presumed to be unfair.[7]

[15] Since the claim of unfair discrimination had been raised by the respondents, the burden of proof in terms of section 11 of the EEA was placed on the appellant, as employer, to show that the discrimination alleged did not take place or that it is justified. This is distinguishable from a claim of discrimination on an arbitrary ground, in which case, in terms of section 11(2), the burden is on the complainants to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair.

There was therefore no evidence that the decision to uncap salaries was applied only to the previously advantaged campus of Pretoria or limited to particular occupations or job grades.

[17] Whether there has been differentiation on a specified (or unspecified) ground is a question which must be answered objectively. The evidence placed before the Labour Court showed that the differential treatment that arose from the decision to uncap salaries was not attributable to the respondents social origin. As much was evident from the fact that employees such as Mr Basini, who although employed at a previously disadvantaged campus, enjoyed the benefit of a higher salary after the cap was removed from his salary, despite the geographical location at which he was employed.

Sexual Harassment

CCT 270/20

McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14 (17 June 2021)

[1] Sexual harassment[1] is the most heinous misconduct that plagues a workplace.[2] Although prohibited under the labour laws of this country,[3] it persists. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms . . . and non-sexism.[4] Not only is it demeaning to the victim,[5] but it undermines their dignity, integrity and self-worth, striking at the root of that persons being.[6] Writing in 1989, in its first reported case of sexual harassment, the erstwhile Industrial Court, sounding the alarm that sexual harassment cannot be tolerated, highlighted that [u]nwanted sexual advances in the employment sphere are not a rare occurrence and it is by no means uncommon.[7]

[44]...In Gaga, the Court noted that the victim was placed in the invidious position of being compelled to balance her sexual dignity and integrity with her duty to respect her superior.[60] Indeed, many years ago, the erstwhile Industrial Court also drew attention to the dilemma facing junior employees subjected to sexual harassment. It said:[Sexual harassment] creates an intimidating, hostile and offensive work environment. . . . Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position. How should they cope with the situation? It is difficult enough for a young girl to deal with advances from a man who is old enough to be her father. When she has to do so in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises . . . her position is unenviable. Fear of the consequences of complaining to higher authority . . . often compels the victim to suffer in silence.[61]

on any other arbitrary ground

PA10/2019

Mdunjeni-Ncula v MEC, Department of Health and Another (PA10/2019) [2021] ZALAC 29 (20 September 2021)

[13] There has been a considerable debate in the Labour Court with regard to the phrase on any other arbitrary ground; in particular whether arbitrary grounds in s6(1) includes not only the prohibition of discrimination on a ground that undermines human dignity but any ground which has shown to be irrational. In Naidoo and others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC) Prinsloo J, after a careful analysis of the jurisprudence generated in the Labour Court on this question, (see in particular Pioneer Foods (Pty) Ltd v Workers Workers Against Regression & others (2016) 37 ILJ 2872 (LC)) held at para 31 the crux of the test for unfair discrimination is the impairment of human dignity and adverse affecting the comparable similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds effects only the burden of proof differentiation on both the listed an analogous ground amounts to unfair discrimination only of the differentiation has indeed affected human dignity or has had an adverse effect in a similar serious consequence.[14] It is significant that the EEA provides in terms of s 6(1) for a prohibition of unfair discrimination any other arbitrary grounds By comparison the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) also introduces a concept of analogous grounds which are defined in s 1 of PEPUDA as:(b) any other ground where discrimination based on that other ground (i) causes or perpetuates systemic disadvantages;(ii) undermines human dignity; or(iii) adversely affects the equal enjoyment of a persons rights and freedoms in a serious manner that is comparable to discrimination on one of the listed grounds.[15] It is therefore arguable that the phrase any other arbitrary grounds extends beyond the genus of the listed grounds set out in s 6 (1) of the EEA in that the use of other arbitrary grounds encompasses a broader scope than the specific provisions of analogous grounds in PEPUDA. However, in Harkson v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 46 the Constitutional Court, albeit in the interpretation of the equality provision in terms of s8 of the Interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993), said the following about meaning of discrimination: There will be discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner. Although Harkson was decided in terms of s 8 of the Interim Constitution, the courts approach clearly dictates adherence to the narrow approach to the meaning of other arbitrary grounds. It is however not necessary to decide this particular question in the present case.

[47] These curious misdirections are particularly unfortunate because this matter relates to sexual harassment in the workplace, perpetrated by a senior medical practitioner who has remained unrepentant for his misconduct with apparent oblivion to the fact that his behaviour constitutes the marrow in the backbone of a culture of sexual harassment that plagues this countrys workplaces. Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core. Eradicating the scourge of sexual harassment will be a Sisyphean task if its perpetrators are compensated lavishly for their misconduct.

pay differentiation

JS925/19

Mogopodi v Departmental of Agriculture, Rural Development, Land and Environmental Affairs (JS925/19) [2022] ZALCJHB 52 (21 February 2022)

[39].... In view of the two legged enquiry in Harksen, in my view, the differentiation in salary levels is not objectively based on attributes and characteristics that have the potential to impair the human dignity of Mr. Mogopodi and others in his position to affect them adversely in a comparably serious manner.

[37] In Pioneer Food (Pty) Ltd v Workers Against Regression (WAR) and others[[2016] 9 BLLR 942 (LC).], this Court held that pay differentiation on the ground of length of service and new appointment does not constitute unfair discrimination as an arbitrary ground. Further, that where the pay difference is contained in a collective agreement, it is not unfair. The Court in Pioneer, the facts of which are on all fours with the present case, stated as follows:[56] Where a collective agreement stipulates different pay levels for employees with different periods of service with the employer concerned, this is not arbitrary differentiation nor is length of service (or being a new employee) an unlisted ground meeting the test just referred to.[57] Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is, on the contrary, a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common. That the lawgiver shares the view that this is rational and legitimate is apparent, inter alia, from:57.1 Regulation 7(1)(a) of the Employment Equity Regulations 2014, which includes length of service as one of the factors justifying differentiation in terms and conditions of employment;57.2 Section 198D(2)(a) of the LRA, which includes length of service as a justifiable reason for differential treatment;57.3 Clause 7.3.1 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value.[59] Moreover, length of service with the employer concerned as a factor affecting pay levels is not an other arbitrary ground, as contemplated in section 6(1) or in the test laid down by the Constitutional Court. Treating people differently in the workplace in accordance with their length of service with the employer does not impair their fundamental human dignity or affect them adversely in a comparably serious manner. The unlisted ground proffered by the union in its heads of argument did not qualify. That too should have been the end of its case.[61] But even on this broader interpretation, the differentiation between new entrants and longer serving employees is rational, sanctioned by collective agreement, and envisaged by the Code of Good Practice. [Emphasis added].

[27] In Harksen v Lane NO[1997 (11) BCLR 1489 (CC)] the Constitutional Court set out a two-pronged test to determine whether differentiation amounts to unfair discrimination where reliance is placed on the equality provision of the Constitution.[16] The Court stated as follows at paragraph [53]:(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.(b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis:(i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).

[25] Item 4 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value[Published under GN in 448 in GG 38837 of 1 June 2015] provides as follows:

arbitrary ground.

JS 136/16

Police and Prison Civil Rights Unions and Others v National Commissioner of South African Police Service (JS 136/16) [2022] ZALCJHB 73 (22 March 2022)

[15] The LAC discussed the applicable principles in matters of this nature, where the claim relates to any other arbitrary ground, in the matter of Naidoo & Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC) at paras 14, 27, and 28, this matter has been succinctly put and applied by the same Court, in Minister of Justice & Correctional Services & Others v Ramaila & Others (2021) 42 ILJ 339 (LAC)[10], where that Court thus:This Court has recently in Naidoo & others v Parliament of the Republic of SA comprehensively dealt with the construction to be placed on the phrase any other arbitrary ground as set out in 6(1) of the EEA. The fundamental question before the Court in Naidoo was whether a narrow or a broad interpretation of the compass of the phrase any other arbitrary ground should prevail. The distinction suggested, on the one hand, that the compass is limited to a ground which is analogous to the listed grounds, and on the other, posited conduct required to be arbitrary, in the sense of being capricious. This Court, after a careful examination of the jurisprudence of the Constitutional Court decisions of this Court and the Labour Court and some academic writings, endorsed a narrow compass interpretation thereof. It held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s 6.[11]

[21]...Tshwane University of Technology v Maraba & Others (2021) 42 ILJ 1707 (LAC) at paras 14 and 17. Considering the provisions of sections 6(4) and (1) of the EEA, which the Individual Applicants rely on, that arbitrary ground is not a stand-alone as espoused in the Naidoo and Ramaila supra, I am not satisfied that the Individual Applicants have presented a case in support of their claim, instead the SAPS through the affidavits qualifies rationale behind the payment of the Allowance and being supported by what they say is additional eligibility and relaxation requirements. As the LAC in the matter of Ramaila supra concluded thus: is not surprising that the impugned instruments brought about a considerable degree of despondency because it resulted in pay disparity between Mr Ramaila and his comparators. This notwithstanding, as this Court observed in Naidoo supra, not all wrongful conduct is justiciable under s 6(1) of the EEA because there is no self-standing ground of arbitrariness or capriciousness. In summary, whatever the possible adverse consequences caused by the pay progression system, these consequences did not constitute discrimination of a kind that could justify a claim in terms of s6 of the EEA.

[22]...and that the intention of introducing the Allowance was to a recruit and keep the necessary scarce skills within the SAPS instead of them being lost to the private sector and other government departments. Consequently, it indicates that there was a justifiability as to why such was done; resultantly, the claim relating to unfair discrimination by the Individual Applicants cannot succeed.

Arbitrary: using cannabis

JS 633/20;JS926/20

Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20;JS926/20) [2022] ZALCJHB 142 (1 June 2022)

ifferentiation between the applicant and other employees

[17] In the case of Harksen v Lane N O and others[[1997] ZACC 12; 1998 (1) SA 300 (CC) at para 46.] the CC set out the test for unfair discrimination under the Interim Constitution[9]. The principles established were captured in the EEA and, due to their importance, it is appropriate to refer to it in full:17.1 Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then theres a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.17.2 Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:a) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whatever, objectively, the ground is based on attributes and characteristics which have the potential to impair their fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.b) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on any unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the effect of the discrimination on the complainant and others in his or her situation.c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provisions can be justified and limited in terms of the limitations clause.

[25] The case of Transnet Freight Rail v Transnet Bargaining Council and others[(2011) 32 ILJ 1766 (LC) at para 19.], endorsed the following statement of the learned author, J Grogan, on handling the disease of alcoholism in the workplace:In this regard Grogan states the following in Workplace Law:Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation (item 10(3)) ....It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence....Special mention is made (in the Code of Good Conduct: Dismissal) of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct. Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense, unless provision is made for them in a medical aid scheme. [Own emphasis]

[27] The General Safety Regulation 2A of the Occupational Health and Safety Act[GNR 1031 of 30 May 1986: General safety regulations.], requires that an employer may not allow any person who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Whilst the general and practical theory of intoxication can be defined as the negative behaviour and impaired physical effects caused by consumption of alcohol, drugs or substances, the legal theory on the other hand is different. Alcohol/drug intoxication is defined legally according to a person's blood alcohol/substance level which can only be determined through testing be it urine, breathalyser or blood samples.

[31] The point is, the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employers policy. The Applicant tested positive for cannabis and continues to test positive as a result of her repeated and daily consumption of cannabis. She will undeniably continue to test positive. The Applicants performance had not been affected by her actions but the Respondents issue was not one of performance. As discussed above, the issue was more properly classified as one of misconduct and her performance is an irrelevant factor. It is pertinent to note that on the day in question, the Applicants performance was indeed affected by her actions, namely, she was unfit to render her services to the Respondent and was immediately instructed to leave the premises of the Respondent or had to be sent home.

[35] The Applicant presented no proper medical evidence. As such, her evidence regarding her medical condition and how the use of cannabis can possibly serve to treat it or provide her with relief is unsubstantiated, and in essence, requires this Court to accept her word as layperson on such a complex medical issue, or even to speculate. This is not permissible.

was perhaps some kind of differentiation

[46] Even if it can be said that in applying the policy to the Applicant there was perhaps some kind of differentiation because of her purported pleaded medical condition, the Applicant will still fail in establishing discrimination. In this regard, the Court in Sethole and others v Dr Kenneth Kaunda District Municipality[20] the Court summarized the position as follows: only specific kinds of differentiation would be impermissible. This would be differentiation that is irrational, or arbitrary, or based on what the Court called a naked preference, or served no legitimate purpose. Differentiation that cannot be shown to fall within one of these categories would be permissible differentiation, the discrimination enquiry would be at an end there and then, and the discrimination claim must fail.As is clear from what I have discussed above, the conduct meted out to the Applicant by the Respondent was rational and served a legitimate purpose. There was no naked preference established. Hence there can be no discrimination.

Retirement age

JA68/2021

Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103 (27 September 2022)

Interpretation - section 187(2)(b) of the LRA: Properly construed it affords an employer the right to fairly dismiss an employee based on age, at any time after the employee has reached his or her agreed or normal retirement age. This right accrues to both the employee and the employer immediately after the employees retirement date and can be exercised at any time after this date.

[16]...On a proper construction of section 187(2)(b) read in the context of the LRA, it is impermissible for an employer to invoke the defence in section 187(2)(b) where the real reason for the dismissal is based on operational requirements or misconduct or incapacity. For example, if the most proximate cause of the dismissal is proven to be one based on operational requirements and not age, as contemplated in section 187(2)(b), then it will be open to the Labour Court to, inter alia, order the employer to pay the employee severance pay.

[26] The approach adopted by the Labour Court in Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd)[14] to determine whether a dismissal in terms of section 187(2)(b) of the LRA is fair remains good law. There the Court held that for a dismissal in terms of section 187(2)(b) of the LRA to be fair, the following three conditions must be present: (a) the dismissal must be based on age; (b) the employer must have an agreed or normal retirement age for employees employed in the capacity of the employee concerned; and (c) the employee must have reached the normal or agreed retirement age.[15]

Pay differences

JS28/2016

Mkhatshwa v Shanduka Coal (PTY) Ltd (JS28/2016) [2022] ZALCJHB 177 (6 July 2022)

[24] It well accepted that that a bald claim that a distinction in remuneration constitutes an unfair discrimination is inadequatefor the onus to shift to the employer to prove that the discrimination was fair.[See: Mangena and others v Fila SA (Pty) Ltd and others [2009] 12 BLLR 1224 (LC) (Mangena) at para 7; South African Municipal Workers Union and another v Nelson Mandela Bay Municipality (SAMWU) [2016] 2 BLLR 202 (LC) at paras 25-26.] In South African Municipal Workers Union and another v Nelson Mandela Bay Municipality,[8] it was held that:In this case the disparate treatment would occur if it is established that the employer treated the complaining employee less favourably on the basis of sex or gender by placing her on a lower remuneration scale for performing the same or similar work as her male comparators. It was not controverted that the assistant directors in the Human Settlement Directorate are performing the same or similar work, some with added responsibilities. It was also not in dispute that there are salary disparities amongst these directors. What remains for the employee to demonstrate is that there is a causal nexus between the differentiation on the basis of her gender or sex and the treatment accorded to her in respect of the grading of her post and the concomitant remuneration. In other words, that being female was a sine qua non for the less remuneration she earned (Emphasis added)[25] By parity of reasoning, the applicant in the present case failed to demonstrate that his race was a sine qua non for being paid less than his white comparators.

Retirement age

C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18

Solidarity obo Strydom & 5 Others v State Information Technology Agency SOC Ltd (C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18) [2022] ZALCJHB 237 (12 August 2022)

[4] Nonetheless, I must reiterate that it is inconceivable that the applicants hoped to successfully rely on both the normal retirement age and agreed retirement age as these notions that are mutually exclusive. As stated in Rubin Sportswear v SA Clothing and Textile Workers Union and Others,[(2004) 25 ILJ 1671 (LAC) at para 24; see also Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016) at para 25.] section 187(1)(b) creates two bases upon which an employer can justify the dismissal of an employee on grounds of retirement age; the one is an agreed retirement age and the other is normal retirement age.[Cash Paymaster Services (Pty) Ltd v Browne (2010) 31 ILJ 1325 (LC) at para 21.]

name had been removed from the shortlist because of his speech impediment

J2311/14

General Industries Workers Union of South Africa and Another v African Explosives Limited (J2311/14) [2022] ZALCJHB 234 (18 August 2022)

[17] In all the circumstances, I am satisfied that due to the serious speech impediment, Mr Tshaya was not in a position to perform the essential requirements of the position of a Technologist, which is to communicate effectively with all stakeholders and particularly, the external stakeholders, who constitute suppliers and end users of the explosive products that are manufactured by AEL. Accordingly, the applicants failed to make out a case to sustain a claim of unfair discrimination in terms of section 6(1) of the EEA.

Retirement age

JA68/2021

Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103 (27 September 2022)

Interpretation - section 187(2)(b) of the LRA: Properly construed it affords an employer the right to fairly dismiss an employee based on age, at any time after the employee has reached his or her agreed or normal retirement age. This right accrues to both the employee and the employer immediately after the employees retirement date and can be exercised at any time after this date.

[16]...On a proper construction of section 187(2)(b) read in the context of the LRA, it is impermissible for an employer to invoke the defence in section 187(2)(b) where the real reason for the dismissal is based on operational requirements or misconduct or incapacity. For example, if the most proximate cause of the dismissal is proven to be one based on operational requirements and not age, as contemplated in section 187(2)(b), then it will be open to the Labour Court to, inter alia, order the employer to pay the employee severance pay.

[26] The approach adopted by the Labour Court in Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd)[14] to determine whether a dismissal in terms of section 187(2)(b) of the LRA is fair remains good law. There the Court held that for a dismissal in terms of section 187(2)(b) of the LRA to be fair, the following three conditions must be present: (a) the dismissal must be based on age; (b) the employer must have an agreed or normal retirement age for employees employed in the capacity of the employee concerned; and (c) the employee must have reached the normal or agreed retirement age.[15]

allegations of racial abuse suffered at the instance of her direct subordinates, and the alleged failure by the respondents to protect and defend her dignity.

JS1030/17

Solidarity obo Oosthuizen v South African Police Service and Others (JS1030/17) [2023] ZALCJHB 4; [2023] 3 BLLR 258 (LC) (10 January 2023)

[36] In the circumstances, it is absolutely clear that Col. Oosthuizen was racially harassed by WOs Tikoe and Mphana which was motivated by insubordination and animus. The respondents’ submission that Solidarity failed to prove that there was discrimination is untenable as the racial harassment complained of is based on a listed ground in terms of section 6(1) of the EEA. Furthermore, it is not their case that the overtly offensive conduct of WOs Tikoe and Mphana was fair.

"[37] In SAMKA v Shoprite Checkers (Pty) Ltd and Others[6] the Labour Appeal Court (LAC) endorsed the following requirements for the application of section 60 of EEA set out in Mokoena and another v Garden Art (Pty) Ltd and another[7] :

‘40.1 The conduct must be by an employee of the employer.

40.2 The conduct must constitute unfair discrimination…

40.3 The conduct must take place while at work.

40.4 The alleged conduct must immediately be brought to the attention of the employer.

40.5 The employer must be aware of the conduct.

40.6 There must be a failure by the employer to consult all relevant parties, or to take the necessary steps to eliminate the conduct or otherwise to comply with the EEA, and

40.7 The employer must show that it did all that was reasonably practicable to ensure that the employee would not act in contravention of the EEA.’"

"[38] It is worth mentioning that these requirements were recently codified in terms of the Code of Good Practice on the Prevention and Elimination of Harassment[8] which came into effect on 18 March 2022. Instructively, clause 10.3 provides that:

‘Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident.’"

[52] In all the circumstances, I am satisfied that for a period of about a year, Col. Oosthuizen was disparaged and humiliated by the racial harassment that was perpetrated by the two WOs with impunity. SAPS is therefore vicariously liable for the actionable racial harassment. In my view, the compensation equivalent to R300 000 is just and equitable. Moreover, SAPS shall tender a written apology to Col. Oosthuizen for the indignity she had suffered.

religion and belief

JS1019/16

Sayiti v Sun International Management Limited (JS1019/16) [2023] ZALCJHB 104 (17 January 2023)

a member of the Seventh-day Adventist Church. It is a practice of this religion that its followers strictly observe the Sabbath.

"6. Prohibition of unfair discrimination

(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

(2) It is not unfair discrimination to –

(a) take affirmative action measures consistent with the purposes of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.’"

[33] As quoted above, the EEA provides that distinguishing, excluding or preferring any person in the workplace on the basis of an inherent requirement of the job does not constitute unfair discrimination.

"[35] The Court in TFD Network[] went on to state as follows in paragraphs [37] and [38]:

‘[37] The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose."

"[38] However, even if that is shown, the enquiry does not end there. In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. In SA Clothing and Textile Workers Union and Others v Berg River Textiles – A Division of Seardel Group Trading Pty, [(2012) 33 ILJ 972 (LC) at para 38.6] the Labour Court correctly and succinctly put it as follows:

“In particular, the employer must establish that it has taken reasonable steps to accommodate the employees’ religious convictions. Ultimately the principle of proportionality must be applied. Thus an employer may not insist on the employee obeying a workplace rule where that refusal would have little or no consequence to the business.”"

"[38] It is common cause that Mr. Sayiti’s contract did not state that it was an inherent requirement of the job of Market Manager to work over weekends. It is also common cause that pursuant to his dismissal, the job description of the position of Market Manager contained weekend work as an inherent requirement.

[39] Having raised the defence of an inherent requirement of the job, the respondent bears the onus to prove that the discrimination is fair, by demonstrating firstly, that weekend work is rationally connected to the performance of the job and secondly, that it is impossible to accommodate Mr. Sayiti without imposing undue hardship on its operations.[23]"

[40]...The requirement of weekend work is not rationally connected to the performance of the job. In the premises, I do not find that weekend work is an inherent requirement of the job. The defence therefore fails on the first leg. There is therefore, no need to canvass the second leg, i.e. that it was impossible to reasonably accommodate Mr. Sayiti without causing undue hardship on the operations of the respondent.

[43] There was no basis to bring Mr. Sayiti before an incapacity hearing for poor performance. There is simply no evidence of any poor performance. Mr. Sayiti was dismissed pursuant to the incapacity hearing and refusing to accept a lower position that still obliged him to work on weekends against his religious convictions. There is therefore a causal connection between his religious convictions and his dismissal. But for his religious convictions, Mr. Sayiti would not have been dismissed.[26] In the circumstances, the true reason for his dismissal is premised on his religious convictions and constitutes unfair discrimination on the basis of religion and belief. I have already mentioned that the respondent failed to prove that the discrimination was fair. In view of the afore-going, I find that the dismissal of Mr. Sayiti is automatically unfair.

Discrimination – Pay – Racial grounds – Recruitment process included considering a candidate’s employment history, whether with the organisation or not, and the salary that the candidate was earning at the time – Applicants not establishing discrimination on grounds of race

JS 618/19

SACCAWU obo Mabaso and Others v Masstores (Pty) Ltd t/a Makro (JS 618/19) [2023] ZALCJHB 49 (9 March 2023)

[21] It is not enough for the Applicants to merely allege that the Comparator earned more because of race. Something more is required to prove discrimination. The unequal treatment must be based on attributes and characteristics attaching to a person before it can fall within the meaning of "discrimination". The Applicants did not establish discrimination on grounds of race. The Respondent proved that the Applicants were remunerated in terms of the relevant legal prescripts which justified their comparators’ higher salary. I cannot therefore find that there was discrimination.

Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code)

J1952/2017

La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (2 May 2023)

"[12] The term harassment has not been afforded any technical meaning in the EEA. However, section 54 of the EEA avails discretionary powers to the Minister as advised by the Commission for Employment Equity (CEE) to issue any code of good practice. On 18 March 2022, the Minister exercising his discretionary powers issued a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code)[4]. In terms of the Code, harassment is generally understood to be (a) unwanted conduct, which impairs dignity; (b) which creates a hostile or intimidating work environment for employees or has the effect of inducing submission by actual or threatened adverse consequences; and (c) is related to the listed or arbitrary grounds. In order for a hostile work environment to be present, the conduct related to arbitrary grounds, in this specific case, impacts on the dignity of an employee.

"

[13] That conduct ought to have a negative impact on the employee’s ability to work and or personal well-being. Such conduct may arise from peers or superiors. Harassment may be direct or indirect. It is indirect if it has the effect of undermining dignity. There are various types of harassment, and they include (i) ostracizing, boycotting, or excluding the employee from work or work-related activities; (ii) use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solving; (iii) demotion without justification; (iv) abuse, or selective use of, disciplinary proceedings; (v) pressurizing an employee to engage in illegal activities or not exercise legal rights; and (vi) pressurizing an employee to resign.

[14] Counsel for the Department Mr. M Gwala SC appearing with Ms. M Lekoane placed heavy reliance on the decision of this Court per Acting Justice Kroon in Tshazibane v Montego Pet Nutrition and others (Montego).[5] Sadly, Montego is, in my view, distinguishable. It dealt with a review of an arbitration award. Additionally, it dealt with section 6 (1) of the EEA as opposed to section 6 (3). The views expressed by the erudite Acting Justice are applicable at the end of the trial as opposed to the stage of absolution from the instance. Mr. Gwala SC forcefully submitted that because La Foy does not rely on any of the specified grounds, she was required to tender evidence that demonstrates the attributes of or is analogous to the specified grounds. In his submission, La Foy did not, simply because on the question from the bench, La Foy testified that she does not know the reason why she was subjected to the conduct she laboriously testified about.

"[15] To my mind, the fact that an employee does not know the reason for a particular conduct does not suggest that no recognizable ground of an arbitrary nature may be deciphered by a Court hearing a case of unfair discrimination predicated on arbitrary grounds. At this stage of the proceedings, it is not the task of this Court, in my view, to fully interpret the particular conduct against the barometer of arbitrariness. However, given the meaning of the word arbitrariness, anyone treated whimsically has reason to believe that his or her dignity is impaired. By way of an example, La Foy testified that as a DDG, she was made to report to her junior and she felt humiliated thereby. For the purposes of the present application, such testimony is enough to find that the conduct, unless justified, is pejorative. Comparably to be subjected to racial discrimination is conduct that impairs a dignity of a person. Equally, a pejorative treatment affects one’s dignity and it is humiliating in nature.

"

[16] To sum it up, in order for an employee to succeed, he or she must show any type of harassment as outlined above and also show that the said harassment happened for the listed or whimsical grounds. Most importantly, if reliance is placed on hostile work environment, an impairment of dignity must be demonstrated. Additionally, section 11 (2) of the EEA burdens an employee relying on arbitrary grounds to prove (a) that the conduct is not rational; (b) it amounts to discrimination, as in differentiation; and (c) that the differentiation is unfair. Having said that, this summed up test applies to success in the claim and is not an applicable test at this stage of the proceedings. Unfairness is not dependent on the say-so of a party, but it calls upon the Court to pass a value judgment based on the conspectus of the evidence placed before it. At this stage it is impossible for a Court to pass such a value judgment. However, La Foy had ad nauseam lamented unfairness in her testimony. If the trial were to be terminated at this stage this Court may find such unfairness[6] as testified to by La Foy, that being the applicable test.

[17] La Foy testified at length and was equally cross-examined at length. For the purposes of the present application, her true evidence is that she has been subjected to (a) ostracizing in a form of not being capacitated. She asked for resources and same were not provided; (b) she has been excluded from work related activities – when she was excluded from international travels related to her branch; (c) she was subjected to selective discipline and to disciplinary and administrative sanctions without an objective cause – when she was placed on precautionary transfer, which had the effect of her functions been taken away (an equivalent of demotion) and when she was ‘bombarded’ with disciplinary steps. She, on countless occasions, testified that she felt humiliated and victimized by such conducts. On countless occasions she testified that she considered the conduct to be unfair to her. At the tail end of her testimony, the Court asked her as to what, in her mind, accounts for the actions she testified about and she retorted “I don’t know”. Reasonably considered this evidence at this stage of the proceedings suggests irrationality and erraticism. In a rather pronounced manner she testified that the Deputy Minister was improperly interfering with operational matters of the department, in a manner suggestive of abuse of power. When reasonably considered the above evidence relates to the elements of the claim launched by La Foy[7].

Sexual harassment: sections 60(1) and (2) of the EEA, a disciplinary action against the perpetrator constitutes an appropriate step to prevent re-occurrence of sexual harassment as required by section 60(2) of EEA.

JS597/21

A.K v Right to Care NPC (JS597/21) [2023] ZALCJHB 182 (5 June 2023)

"[28] In Liberty Group Ltd v M[(2017) 38 ILJ 1318 (LAC) at para 38.] (Liberty), the Labour Appeal Court (LAC) endorsed the requirements for employer liability in terms of section 60 where the discriminatory conduct complained of is one of sexual harassment outlined in Potgieter v National Commissioner of the SA Police Service and another[4] that:

(i) The sexual harassment conduct complained of was committed by another employee.

(ii) It was sexual harassment constituting unfair discrimination.

(iii) The sexual harassment took place at the workplace.

(iv) The alleged sexual harassment was immediately brought to the attention of the employer.

(v) The employer was aware of the incident of sexual harassment.

(vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.

(vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA."

[29] Notably, section 60 creates a statutory vicarious liability for employers for a conduct of an employee, while at work, that contravenes any provision of the EEA. Therefore, the issues for determination are three. First, whether the alleged sexual harassment had been immediately reported to the respondent. Second, upon being notified of the discriminatory conduct, the next enquiry turns on whether the respondent took necessary steps to eliminate the alleged discriminatory conduct in consultation with the relevant parties. Third, to escape vicarious liability, the respondent must show that it did all reasonably possible to create an environment that is free from sexual harassment.

[35] It follows that when confronted with an allegation of sexual harassment, which is the most heinous misconduct that plagues a workplace[8], the context and merits of each case would have to be taken into consideration. I accept that the delay of 10 months in reporting the first incident is not insignificant. I, however, accept the applicant’s explanation that she thought Mr Molele would stop after she had confronted him and he apologised. The second incident was reported within two months from the date of the incident, which, in my view, is not unreasonable.

[49] In all the circumstances, I am satisfied that the respondent did not contravene section 60 of the EEA. As such, the applicant’s claim stands to be dismissed.

unfairly discriminated against him on the ground of a disability

JS 602/19

Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175 (6 June 2023)

[26] The letter of 31 October 2018 clearly set out the reasons for the termination of the Applicant’s services. It was in the main because the Applicant’s experience was not in line with the inherent requirements of the ICT position and because he could not discharge the duties of ICT manager successfully, given the specialised job and the organisational requirements and because of the Applicant’s refusal to consider alternative work at a lower position.

[45] The Respondent pleaded that the Applicant’s dismissal was fair because the ability to read and to write was an inherent requirement of the position of senior researcher as well as that of ICT manager. Those were core responsibilities of the said positions and after being declared legally blind, the Applicant could not perform the key responsibilities required in the said positions. The Applicant was not fit to perform the core responsibilities of the position of senior researcher and ICT manager and he rejected another junior, but alternative position. The Respondent disputed discrimination against the Applicant.

[76] This Court has empathy for the Applicant and his unfortunate plight, but in deciding the issues relating to discrimination and automatically unfair dismissal, the law must be applied dispassionately, with the focus on the relevant legal questions and the applicable principles.

"[75] Before setting out the reasons why the Applicant’s case must fail, I have to emphasize that the approach followed, had been guided by the following dicta of the Constitutional Court in Adams Damon v City of Cape Town[[2022] 7 BLLR 585 (CC) at paras 109 – 110.] (Damon):

‘[109] … At the outset, it is necessary to caution against ad misericordiam (appeal to pity) reasoning that attempts to persuade solely by evoking legally irrelevant feelings of sympathy. In this case, that type of reasoning would have us fixate on the fact that the applicant sustained the injury that led to his permanent disability while at work. Yet, that fact is entirely irrelevant to the legal question that is dispositive of this appeal, namely: does the Policy discriminate unfairly against the applicant?

[110] Although it is tempting to have regard to the circumstances surrounding the applicant’s injury, which are emotionally compelling, they are not logically connected to the central issue in the case, namely the alleged unfair discrimination brought about by the Policy’s inherent requirement for the job of senior firefighter. One understandably empathises with the applicant’s unfortunate plight and its cause, and of course, the law must be responsive to social realities. It does not exist in a vacuum. However, the law must also balance various interests, which may at times compete, and it must be applied dispassionately and in a sustainable fashion.’

"

"[80] In Damon, the Constitutional Court dealt with a matter where the applicant was unable to fulfil the normal operational duties associated with the position he had occupied, due to his disability. There was no prospect that the applicant could be rehabilitated from his disability, as it was permanent in nature and he was unable to resume normal, operational duty in the future. The Constitutional Court held that[5]:

‘The genesis of section 6(2)(b) is Article 1(2) of Convention 111, which lays the basis for the defence of an inherent requirement not amounting to discrimination. The CRPD does not mention the concept of the inherent requirement of a job. An inherent requirement of the job is usually impervious – a complete defence – to a claim for unfair discrimination. Of course, the requirement must be genuine. Once a requirement is determined to be inherent, then as a matter of law, it is not unfair discrimination for an employer to insist on employees meeting the requirement. An employer who proves that a requirement is inherent is protected against a claim of discrimination and therefore cannot be compelled to waive or excuse an inherent requirement to accommodate a person with disability.’"

"85] In Damon, the majority held that[6]:

‘[135] The principle that physical fitness is an inherent requirement for the post of senior firefighter plays a crucial role in this case. Inherent requirements of the job refer to elements of a job that are essential to its outcome and part of its core activities. In TDF Network Africa, in dealing with whether a requirement is inherent or inescapable in the performance of a job, it was held that –

“the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.”

…

[140] The Code endorses the principle that “employers must reasonably accommodate the needs of persons with disabilities” and that “the aim of the accommodation is to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of the job”. The Code lists various forms of reasonable accommodations that are all aimed at enabling an employee with disabilities to do the job that they are employed to do. In other words, they are aimed at placing the employee with disabilities on an equal footing with employees without disabilities as far as the operational requirements and performance of the job are concerned. The obligation to reasonably accommodate thus applies if such reasonable accommodation will make it possible for the employee to fulfil the inherent requirements of the job. Accommodation beyond this would cease to be reasonable, because it would effectively require an employer to employ someone who cannot possibly perform the inherent requirements of the job.

[141] In this case, it is common cause that the applicant cannot meet the inherent requirements of the job of a senior firefighter. It is also not contested that no amount of reasonable accommodation will enable the applicant to meet the inherent requirement of physical fitness for a senior firefighter. Section 6(2)(a) would not avail the applicant since, at most, it would require the respondent to reasonably accommodate him. In the present instance, once the respondent has successfully raised the defense that physical fitness is an inherent requirement of the post of a senior firefighter, the question of reasonable accommodation falls away.

[142] If the first judgment’s understanding of section 6(2) were to prevail, employers would effectively be required to reasonably accommodate employees who cannot meet the inherent requirements of the job to which they seek appointment. Or worse, it would place an obligation on employers to create new positions in order to accommodate employees who did not meet the inherent requirements of a different job altogether. This is plainly incompatible with the very nature and purpose of reasonable accommodation, which is to enable an employee with disabilities to perform in accordance with the inherent requirements of the job.

[143] In my view, the first judgment’s approach subverts the careful balance which the EEA strikes between, on the one hand, respecting the legitimate operational prerogatives and needs of employers, and, on the other hand, ensuring that employers take steps to ensure equitable access to the workplace...’"

"Disability and incapacity

[91] In Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others[7] (Standard Bank), the Court held that:

‘Disability is not synonymous with incapacity. Under Canadian law adjudicators may not find a person incapable unless they are satisfied that the needs of the person cannot be accommodated except with undue hardship. An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.’

[92] Put differently: the LRA recognises three grounds on which a termination of employment might be legitimate; namely the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. Dismissing an employee who is incapacitated and who cannot perform his or her normal duties, whose prognoses are poor and whose working conditions cannot be adapted or alternative work is not available and who cannot be accommodated, is not unfair. Dismissing a disabled employee who is not incapacitated, is unfair, and if the main or dominant reason for dismissal is the employee’s disability as opposed to incapacity, such dismissal will be automatically unfair."

"[94] What is an employer expected to do if an employee is incapacitated? This was considered in Standard Bank, and the Court held that the LRA guidelines for incapacity dismissal contemplate a four-stage enquiry before an employer effect a fair dismissal:[8]

‘[72] Stage one: The employer must enquire into whether or not the employee with a disability is able to perform her work. If the employee is able to work, that is end of the enquiry; the employer must restore her to her former position or one substantially similar to it. Where possible, the job should correspond to the employee's own choice and take account of her individual suitability for it. If the employee is unable to perform her work and her injuries are long term or permanent, then the next three stages follow.

[73] Stage two: The employer must enquire into extent to which the employee is able to perform her work. This is a factual enquiry to establish the effect that her disability has on her performing her work. The employer may require medical or other expert advice to answer this question.

[74] Stage three: The employer must enquire into the extent to which it can adapt the employee's work circumstances to accommodate the disability. If it is not possible to adapt the employee's work circumstances, the employer must enquire into the extent to which it can adapt the employee's duties. Adapting the employee's work circumstances takes preference over adapting the employee's duties because the employer should, as far as possible, reinstate the employee.

[75] During this stage, the employer must consider alternatives short of dismissal. The employer has to take into account relevant factors including 'the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement' for the employee.

[76] Stage four: If no adaptation is possible, the employer must enquire if any suitable work is available.’"

[100] The Applicant’s complaint, that instead of trying to assist him in his position as senior researcher, the Respondent offered him alternative positions, has no merit. It was made clear in Standard Bank that if no adaptation is possible, the employer must enquire if any suitable work is available.

[107] Thus: the Applicant has to produce sufficient evidence to raise a credible possibility that his dismissal amounted to differential treatment on the ground of his disability. If that possibility is established, the Respondent needs to produce sufficient evidence to rebut the possibility or to show a fair justification for the differential treatment.

"[110] The Applicant bears the onus to show that he was indeed discriminated against for reasons relating to his disability and he has to show that his dismissal was causally connected to his disability. The Applicant has to discharge these evidentiary burdens.

"

"[111]...The question is this: would the dismissal have occurred if there was no disability?

[112] In my view, the answer to this question is no. This however does not render the dismissal automatically unfair as the next issue to be considered is one of legal causation. The question is whether the Applicant’s disability was the main or dominant cause of his dismissal. The mere fact that the Applicant’s disability was a factual cause is not sufficient to find that there was an adequate causal link between the Applicant’s disability and his dismissal to conclude that his disability was the reason for it."

[118] The Applicant has not produced adequate evidence to prove that the treatment accorded to him in any way differed from the treatment accorded to other employees or that the reason for his dismissal was his disability.

Age: 'agreed' and 'normal' retirement age

JR 2644/18

Valla v South African Broadcasting Corporation SOC Ltd and Another (JR 2644/18) [2023] ZALCJHB 232 (19 July 2023)

Dismissal – Automatically unfair – Employee remained on fixed-term contract until expiry – Resolution had converted contract into permanency and amended the agreed retirement age from 60 to 63 – Termination of her employment was a dismissal – Dismissed was based solely on her age, which was not the agreed retirement age of 63, making her dismissal automatically unfair – Her dismissal constituted unfair discrimination on the ground of age in terms of section 6(1) of the Employment Equity Act 55 of 1998 – Labour Relations Act 66 of 1995, s 187(1)(f).

"[51] In Arb Electrical Wholesalers (Pty) Ltd v Hibbert[[2015] 11 BLLR 1081 (LAC); [2015] ZALAC 34 at paras 17 – 18.] (Arb Electrical), the LAC found that if there is no agreed age, the termination of the employment contract could be automatically unfair. When determining what was meant by ‘agreed retirement age’, the Court in Bester v State Information Technology Agency (SOC) Ltd[6] (Bester) stated that, when you have an agreed retirement age, like any other contractual term, there must be a “meeting of the minds”. The Court further stated that it doesn't matter what the employee alleges was the retirement age, that is agreed or normal; the onus is not on them to prove the fairness or unfairness of their dismissal. The Court stated that:

‘…It is SITA which seeks to fend off a claim of automatically unfair dismissal and not Bester. Section 192 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and if the existence of the dismissal is established, the employer must prove that the dismissal is fair… Once he [Bester] established dismissal, which he did, in these proceedings he must rest and where necessary rebut whatever SITA presents as a justification for his dismissal.’[7]"

[59] As the Court enunciated recently in Bester, only the normal retirement age must be considered if there is no agreed age. In the current matter, the Policy is a contractual term of the employment contract, making the retirement age an agreed age which was changed at the employer's behest through a resolution that Ms Valla accepted. Since the agreed age was 63, the only conclusion that can be arrived at is that Ms Valla was dismissed based solely on her age, which was not the agreed retirement age, thereby making her dismissal automatically unfair.

Age: when the applicant was employed she had already passed the retirement age.

JS 1040/20

Seokwane v Bidvest Prestige Cleaning Services (Pty) Ltd (JS 1040/20) [2023] ZALCJHB 313 (8 November 2023)

[12] The applicant was employed on a 3-year eventuality contract from July 2019. She earned R4 860.40 monthly. She was dismissed unfairly based on her age on 31 June 2020 and received an amount equivalent to her remuneration for July and half of August 2020. She sought compensation. The respondent submitted that the applicant was employed because it allowed itself to be persuaded by VW to employ her. The respondent overlooked its policy and employed the applicant in order to please VW, its client. It had no regard of the impact of its conduct on the applicant, a vulnerable employee. When employing the applicant, the respondent was aware that her circumstances were different. It did nothing to warn her. It instead gave her the standard contract in terms of which she would be employed for a period of 3 years. The direct result of the respondent’s conduct was that the applicant was given a month’s notice of her retirement. The conduct is in conflict with fair retirement of employees which gives employees fair notice of retirement. The retirement age is either contained in the contract of employment or is known by employers and employees in the capacity the employee is employed in. The knowledge gives employees enough time to prepare for their retirement. The manner in which the respondent retired the applicant denied her opportunity. The applicant’s dismissal is not justified by section 187 (2) (b) of the LRA. It is just and equitable in all the circumstances of this case to award the applicant compensation equivalent to remuneration she would have earned over a period of 12 months at her rate of remuneration on dismissal.

Exception to pleedings: “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds...‘Discrimination is about infringement of dignity (or a comparably serious harm) about an identifiable and unacceptable ground and about the link directly or indirectly between that ground and the differentiation.

JS 257/2022

Mkalipi v Minister of Labour and Employment NO and Another (JS 257/2022) [2023] ZALCJHB 251 (25 August 2023)

[17] Discrimination, in all its multifacetedness, is intractably linked to our checkered past as a nation. Our anti-discrimination posture is rooted in our Constitution through which we resolved to take that posture which also led to the legislative framework that basically outlaws unfair discrimination in any shape or form. For these reasons, when the issue of discrimination in general and unfair discrimination in particular arises, we always go back to our Constitution which undergirds our legislative framework that regulates all issues of discrimination and outlaws unfair discrimination.

"[18] The Constitutional Court had occasion to deal with the notoriously complicated and at times, nuanced issue of discrimination and the examination that must go into it. In Harksen [Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC) at 324 – 325 para 54.], Goldstone J, writing for the majority, explained the enquiry that must go into the determination of an issue of discrimination. That was in the context of section 8 of the interim Constitution, the forerunner to the current Constitution. He said:

“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on s 8 of the interim Constitution. They are:

(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of s 8 (1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to ‘discrimination’. If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, then unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8 (2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s33 of the interim Constitution).”"

"[19] It will be observed that the EEA was the legislation envisaged in section 9 (4) of the Constitution. In 2013 the EEA was amended to make provision for “any other arbitrary ground” at the end of the grounds original listed in section 6 (1) of the EEA. Recently the Labour Appeal Court had occasion to express itself on this amendment in Naidoo 2[Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC); [2020] 10 BLLR 1009 (LAC) paras 25-26..]. It said:

“In Chitside v Sol Plaatjie University [2018] 10 BLLR 1012 (LC), the issue was whether it was an act of unfair discrimination that only one candidate in a series of job interviews was required to write a test. The case failed on the facts. However, at [31] of that judgment, the Court endorsed the view that the 2013 amendments introduced a self-standing ground of arbitrariness and, as in Kadiaka, this meant capriciousness. As I understand the judgment these remarks were obiter. Regrettably that court paid very little attention to the jurisprudence of the Constitutional Court with regard to section 9 of the Constitution which is also the source of section 6 of the EEA which is predicated, as already noted, on the basis that the prohibited grounds are all designed to protect the dignity of an affected person. That is the starting point of any enquiry regarding discrimination. This conclusion is reinforced by the ‘words’ any other arbitrary ground. The insertion of the word ‘other’ supports the conclusion that the phrase “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of section 6. None of these important considerations were taken into account by the Court. In addition, the Court, ostensibly, did not have the benefit of the views of Garbers and Le Roux to which I now turn in some detail.

Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is “… any other arbitrary ground” and not the word “arbitrary”, free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious”. The injunction in section 6 (1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “… any other …” cannot be understood as otherwise than looking back at what has been stipulated in the text that preceds it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity. The authors express this view, with which I agree:

‘Discrimination is about infringement of dignity (or a comparably serious harm) about an identifiable and unacceptable ground and about the link directly or indirectly between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.’”"

[21] He points out that this reflects the assessment placed by their employer on the value brought by Mr Ndebele to the post of Chief Director. His remaining placed at a lower level and on a lower notch has the effect on how his colleagues and junior employees whom he manages might regard him. This, he submits, is not only arbitrary and an unjustifiable under-evaluation of the value he brings to his post but is in fact a continuing affront to his dignity as a human being as it impairs his fundamental human dignity in a comparably serious manner. This is because the value he brings to the post is viewed as being less than that of Mr Ndebele by their employer for no justifiable operational and employment reason.

"[25] The debate about unfair discrimination on an unlisted ground which is considered to be what the additional ground of unfair discrimination ̶ unfair discrimination “on any other arbitrary ground”, has taken various forms and has been raging for a while now. I do not think that the dust has settled yet on that debate and in fact it does not look like it is about to settle anytime soon. This is hardly suprising regard being had to our nervousness, justifiably so, whenever two human beings are, for no apparent reason, treated differently and the harm that may do to human dignity. This is in part because in some ways when people complain of unfair discrimination, they are not always able to say that the unfair discrimination that they experience in the workplace for instance, is attributable to their race, colour or culture or any of the other listed grounds. Therefore, even to say that, as it has been said in some cases, unfair discrimination on an arbitrary ground must be on a ground similar to the listed grounds or one or some of them, does attract some degree of controversy in my respectful view. It therefore needs to be carefully assessed on the facts of that particular case.

[26] This is because the listed grounds are tied to our past discriminatory history. To then say that unfair discrimination on an arbitrary ground must mean unfair discrimination on a ground analogous to the listed ones could unintentionally create a closed or exhaustive list of grounds of unfair discrimination on arbitrary grounds by confining unfair discrimination to something analogous or similar to one or some of the listed ones depending on whatever ones’ idea of that means. It seems to me that the legislature realized that unfair discrimination may not always be on any of the listed grounds hence adding the additional ground of unfair discrimination on any other arbitrary ground, thus opening up for a complainant to plead her or his case and lead evidence of the alleged unfair discrimination."

"[27] In Naidoo 1[Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) para 30-31.] Prinsloo J had this to say:

“In my view the correct approach is to accept the narrow interpretation and I say so for a number of reasons.

Firstly, I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect in a similar serious consequence.”"

harassment: Code of Good Practice on Prevention and Elimination of Harassment in the Workplace

J1952/2017

La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 253 (8 September 2023)

harassment as a form of unfair discrimination based on arbitrary grounds. The applicant failed to discharge her statutory onus. Unfair discrimination not established. Managerial functions and activities do not amount to workplace harassment. Decayed relationship with political heads incapable of amounting to harassment. Individual acts of harassment are not ongoing in nature. Each act or omission is subjected to the time frame provided for in the EEA. Failure to refer each act or omission to the statutory bodies for conciliation or mediation timeously impacts on the jurisdictional powers of the Labour Court. Where an act or omission amounts to an unfair labour practice as defined in the Labour Relations Act, the remedy lies in the LRA. The provisions of the LRA cannot be bypassed in order to build a case under the EEA. The inquiry into the alleged harassment conduct, although viewed from the perspective of the harassed employee, remains an objective one, regard being had to its impact on the dignitas of the persona. Held: (1) The claim for unfair discrimination is dismissed. Held: (2) There is no order as to costs.

[17] As indicated at the dawn of this judgment, the key legal question in this dispute is whether La Foy was subjected to unfair discrimination that is prohibited on any arbitrary grounds. In order to answer that key question, this Court must consider whether the litany of complaints hoisted by La Foy constitutes harassment within the meaning of section 6 (3) of the EEA. Justice contends that La Foy failed to show that there was harassment within the meaning of the section. La Foy contends to the contrary. Once a finding is made that any of the alleged acts constitute harassment, the next question is whether that harassment amounts to unfair discrimination that is prohibited on the ground (arbitrary) pleaded by La Foy. Owing to the above permutation of the issues, the first issue to be tackled is to define what harassment means.

[18] In section 6 (3) of the EEA, the legislature only informs us that harassment is a form of unfair discrimination. However, that form of unfair discrimination has not been afforded any particular meaning. In an instance where the legislature has not provided any technical meaning to a word, Courts often resort to the grammatical meaning of the word. The grammatical meaning of the word is aggressive pressure or intimidation. To harass means to trouble by repeated attacks. Given the wide grammatical meaning of the word, it became apparent that some legal definition of the term is required. Section 54 (1) (a) of the EEA empowers the Minister of Labour and Employment to issue any code of good practice intended to provide employers with information that may assist them in implementing the EEA. On or about 16 March 2022, the Minister published a Code of Good Practice on Prevention and Elimination of Harassment in the Workplace (Code)[6]. It was in this Code that an acknowledgement was made that the EEA does not define the term harassment.

"In clause 4 of the Code, the following is stated:

‘4. WHAT IS HARASSMENT...4.6 Hostile work environment...The Code sets out the types of harassment."

"[24] Given the grammatical meaning of the word harassment, it is relatively easy for an employee to deliberately avoid the useful and necessary distinction between the exercise of managerial powers and harassment. For example, a lethargic employee may consider certain work instructions to amount to harassment.[Maphanga v Department of Justice and Constitutional Development (Maphanga) [2023] ZALCJHB 69; [2023] 6 BLLR 530 (LC).] In Maphanga v Department of Justice and Constitutional Development[12], this Court had the following to say:

‘The purpose of the [EEA] is to eliminate unfair discrimination… In law harassment refers to a person acting in a manner that causes the complainant to fear harm. Harm refers to any mental, psychological, physical or economic harm. Based on this definition, it cannot be said that if a superior issues a work instruction, such superior is acting in such a manner that will cause the junior to fear harm. It follows that based on his own testimony Maphanga was not harassed. All what his superior did, as he should in a work environment, was to issue an instruction. The fact that Maphanga ebulliently held a view that the instruction was unlawful does not morph the instruction into a harassment.’ [Own emphasis]"

"[25] Thus, in my view, care must be exercised when complaints of work-related harassment are considered by a Court or forum. A Court must be alive to the idiosyncrasies and over-sensitivities of individual employees. Courts and dispute resolution fora with commendable distinction dealt with similar situations in cases of alleged constructive dismissals. A similar approach as adopted in cases of constructive dismissal is warranted in matters of this nature, particularly where arbitrariness is alleged as a ground. A feeling of being demeaned and or humiliated is one that is subjective in nature. A feeling that a work environment is intimidating or hostile is bound to be a subjective one. It is for that reason that the objectivity of the conduct is viewed from the subjective perspective of an employee. 64 years ago, the erudite Schreiner AJ had the following to say in R v AMCA Services Ltd and another[1959 (4) SA 207 (A) at 212H-I] (AMCA):

‘The first test to consider is that which is generally regarded as the most important for the purpose of deciding whether a person is a servant at common law, namely, whether the employer (using that word in a colourless sense) has the right to control, not only the end to be achieved by the other’s labour and general lines to be followed, but the detailed manner in which the work is to be performed.’ [Own emphasis]"

"[26] The sentiments expressed in AMCA received an imprimatur from my departed brother Webster J in Pretorius v Minister van Handel en Nywerheid[[2005] JOL 14393 (T).] (Pretorius). In this matter, Mr. Pretorius, a public servant approached the High Court to seek an interdict against the Director-General of the Department of Trade and Industry. He claimed that the Director General and officials in the department were harassing and victimizing him by subjecting him to investigations and questioning in respect of a grievance he lodged against the department. Amongst the complaints raised by Pretorius were (a) leave application was turned down; (b) protest against participation in the instructions to raid; (c) failure to hold a disciplinary enquiry within one month of suspension; (d) failure to disclose the name of an investigation official; (e) annual leave of five days was refused; and (f) he was subjected to criminal investigations. Having considered each of the complaints, the learned Webster J dismissed the application with costs. Before reaching his conclusion and having placed reliance on AMCA and Smit v Workmen’s Compensation Commissioner[15], Webster J stated the following:

‘It is clear from the above that the services of the applicant are subject to supervision, direction, control and interference by the respondent. The applicant has no right to the relief he seeks.’[16]"

"[27] Strikingly similar to the Pretorius matter are some of the complaints raised by La Foy before me. I am in agreement with the sentiments expressed by Webster J. The Court of Appeal of the Kwazulu Natal Division sitting in Pietermaritzburg, in the matter of Mnyandu v Padayachi (Mnyandu)[[2016] ZAKZPHC 78; [2016] 4 All SA 110 (KZP).] had an occasion to consider the meaning of the word ‘harassment’ as employed in the PHA. In Mnyandu, the issue involved the sending of an email containing allegations which were not true. The Court of Appeal concluded that harassment must be repetitive, oppressive or overwhelmingly oppressive if it is a single act and must be unreasonable in nature. Moodley J, writing for the Appeal Court, reached the following findings, which felicitously resonate with this Court in the present matter:

‘In my view the conduct of the appellant in sending the email may have been unreasonable, as she allowed her emotions to cloud her perceptions, but I am not persuaded that her conduct was objectively oppressive or had the gravity to constitute harassment.’[18]"

[29] In full agreement with Raulinga J, this Court takes a view that La Foy may have been offended; unhappy or saddened by the actions of the Department officials as testified to by her, however applying the objective test and also considering that the actions occurred in a work environment, it cannot be said that La Foy was harassed within the meaning of unfair discrimination contemplated in the EEA.

[32] This Court shares the sentiments expressed in both Canadian cases. Objectively judged, the complaints raised by La Foy amount to unpleasant consequences of the exercise of management functions. Unpleasant as they may have been to La Foy, they do not cause any demonstrable harm for them to cumulatively amount to a harassment that amounts to an unfair discrimination. Having defined what harassment means, I now turn to the issue of onus.

[33] In law, onus means the burden of proof which requires the accuser to prove the case against the accused. In casu, La Foy bore the burden to prove that Justice unfairly discriminated against her. For prohibition, La Foy places reliance on the ground of arbitrariness. Section 11 (2) of the EEA provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities that – (a) the conduct complained of is not rational; (b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair. Absent proof of any one of the above leads to the complainant failing in his or her claim. I must state, the burden placed on La Foy is undoubtedly an onerous and heavy one. As a point of departure, a behaviour is said to be irrational if it is not based on logical reasons or clear thinking. Differently put, it is conduct that is foolish, idiotic and downright stupid. It is a prima facie unreasonable conduct. As it shall later be demonstrated, the conducts complained of in casu are far from being foolish by a proverbial mile. This being the first hurdle to cross, it must follow that La Foy failed to discharge her statutory burden of proof. She could not prove on the preponderance of probabilities that any of the conducts complained of are foolish, idiotic or stupid.

[34] Assuming for now, which assumption this Court is not necessarily making in the ultimate end, that La Foy managed to cross the first hurdle, she still has to show that the conduct amounts to discrimination. Discrimination is an act of making distinctions. It is an unjust or prejudicial treatment of different categories of people. Yet again the evidence tendered before this Court is far from demonstrating discrimination. As indicated above, La Foy simply suffered from unpleasant consequences of the exercise of management function. In my view, La Foy comes second best on this leg. She conceded during her testimony that the issue of incapacitation was not facing her or her branch only.

"[35] A further putative assumption being made that the second hurdle is crossed, La Foy still has to show that the discrimination is unfair. It is accepted that the notion of fairness is elastic and incapable of a specific definition. However, as pointed out, an employer exercises control and interference at the workplace. Later in this judgment, this Court shall consider each of the complaints raised by La Foy. For now, this Court takes a firm view that no element of unfairness has been demonstrated in this trial. It suffices to mention that inasmuch as the relationship between La Foy and the DM decayed over a period of time, such does not imply unfairness. On the version of La Foy, as demonstrated by the referral documents, the dispute that this Court must adjudicate upon, arose on 24 April 2017. She referred that dispute for conciliation, as required by section 10 (2) of the EEA, on 9 May 2017. Howbeit, this Court benignantly received testimony about incidents that took place in 2016, shortly after La Foy assumed employment with Justice. These incidents would as a matter of fact have fallen outside the prescribed six months’ period. Nevertheless, on her own version, the dispute that was conciliated upon arose in April 2017. As an annexure to the referral form, La Foy vaguely listed acts complained of and deliberately failed to set out the dates of each incident. This Court must assume that such a palpable deliberate failure was aimed at bypassing the six-month legislated period. Had she disclosed the dates of each incident, she may have been compelled to show good cause as required by section 10 (3) of the EEA...[37...When one speaks of them one cannot say they are happening but one must say they happened.

"

"[41] Reverting to the definition of a cause of action, the prohibited grounds, in this instance, any arbitrary grounds, constitute a piece of evidence necessary to prove the cause of action – unfair discrimination. Put differently, in the absence of any of the grounds listed or unlisted differentiation lacks legal basis to constitute an actionable claim.[30] There can never be a legal claim of unfair discrimination if the grounds are not alleged to be any form of differentiation. Therefore, a ground on its own is not a separate and distinct cause of action. In this regard, the facta probanda is the unfair discrimination and the facta probantia is the alleged ground.

"

[47]... The Constitutional Court in Hoffman v SA Airways[[2000] ZACC 17; 2001 (1) SA 1 (CC).] concluded that the determining factor regarding the unfairness of discrimination is its impact on the person discriminated against. La Foy admitted that the limitations placed on the provision of resources were not aimed and directed at her as a person.

[69] Key ingredients for legislation aimed at eliminating workplace harassment are the right to dignity, equality and fair labour practices. Thus, harassment must be an act that threatens all or one of these key ingredients. Managerial functions generally do not threaten dignity, equality and fair labour practices. Having considered the complaints of La Foy cumulatively and objectively as fully discussed earlier in this judgment, this Court fails to observe any harassment as legally defined. It is indeed so that the alleged conduct ought to be assessed objectively from the perspective of an employee who alleges harassment. The primary focus of the inquiry as to whether there has been harassment, is on the impact of the conduct on the employee. The employee in this instance should be a bonis pater familias (reasonable person). Where a hostile work environment is alleged, key is the impact on the dignity of an employee as a person. This Court has already acknowledged that allegations and counter-allegations between the DM and La Foy led to the perspicuous decay of the relationship between them. However, this indisputable decay does not, in my view, transmute into harassment. The DM gave his reasons why he no longer wished to work with La Foy. In the present proceedings, it is not the function of this Court to inquire into the reasons provided by the DM. There was no contractual relationship between the DM and La Foy at the relevant period. Put differently, La Foy could perform her contractual functions optimally without any relationship with the DM or his involvement. By all accounts, La Foy has failed to establish the existence of unfair discrimination and her claim falls to be dismissed.

arbitrary ground

JA86/22

Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12; [2024] 6 BLLR 562 (LAC); (2024) 45 ILJ 1554 (LAC) (23 April 2024)

"[30]...An arbitrary ground is not merely any ground that has not been listed. This Court has settled the debate on whether a wide or narrow interpretation should be given to the meaning of arbitrary ground. It endorsed the narrow interpretation as a measure of limiting every and any claim related to labour relations being raised as unfair discrimination, stating:

‘The essential point is that the phrase to which meaning must be attributed is “ … any other arbitrary ground” and not the word “arbitrary,” free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious.” The injunction in section 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “ … any other …” cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity.’[Prince 2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC).]"

"[31] More recently in Tshazibane v Montego Pet Nutrition and Others,[2022] ZALCPE 19; (2022) 43 ILJ 2610 (LC); [2022] 12 BLLR 1151 (LC).

] the Labour Court having examined the relevant authorities, reached a similar conclusion, holding:

‘To summarise, where reliance is placed on an arbitrary ground a complainant in an unfair discrimination claim is required to establish that [they have] been the object of unequal treatment based on attributes and characteristics [they] either possess or with which [they are] associated and which have the potential to sully or diminish [their] intrinsic humanity and that of others in [their] situation. It is the impact on the complainant which is decisive.’[25] (Footnotes omitted.)"

[32] The Appellant must thus show that the discrimination she alleges impacted her dignity in a manner comparable to how dignity is impacted when discrimination is on a listed ground. The Appellant submits that the discrimination she faced as a cannabis user seriously infringed on her dignity by violating her right to privacy and subjecting her to a humiliating process that portrayed her as a “junkie”. This is based on the common cause facts that when testing positive, the Appellant was not impaired in the performance of any of her duties. It is common cause that the appellant worked in an office and her job did not entail operating dangerous machinery. She was also not required to drive for the Respondent or perform any duty where impairment from cannabis would present a risk to her or others in the workplace.

[52] I conclude that the Respondent’s policy is overbroad and infringes the Appellant’s right to privacy. I find that her treatment as someone who was “intoxicated” when in fact she was not, is unfair discrimination because it singles out cannabis users compared to alcohol users, for what they do at home, even in situations where their conduct carries no risk for the employer.

Differentiation on a specified ground of discrimination: discriminated against on the basis of their prior status as fixed term contract employees. Sunset clause: [89] The differentiation with respect to the sunset employees is admitted. They were denied a wage increase for a period until their basic remuneration fitted into the approved salary band for the positions they occupied. It is undisputed that the Applicants who were subject to the operation of the sunset clause were treated differently from other permanent employees in that they did not receive the wage increases the other permanent employees received.

J2055/2014

Lebelo and Others v City of Johannesburg Metropolitian Municipality (J2055/2014) [2024] ZALCJHB 23 (22 January 2024)

[70] Differentiation per se does not constitute discrimination. Differentiation on a specified ground of discrimination is presumed to constitute unfair discrimination, which presumption is rebuttable. Given that an arbitrary ground is synonymous with an unlisted/unspecified ground, the test for whether discrimination is established is as set out in Harksen v Lane NO and others[2] (Harksen), namely, if there is differentiation based on an unspecified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner.[3]

[75] In short: it is not sufficient to simply allege differentiation or that the differentiation is arbitrary or that an employee’s dignity has been impaired. An applicant must allege a specific ground of discrimination, and must prove that the pleaded ground of discrimination is the basis for differentiation and that it is unfair. There is a distinction to be drawn between differentiation and discrimination and differentiation per se does not constitute discrimination on an arbitrary ground, which must be clearly identified and pleaded.

"79] Irrational differentiation does not automatically constitute unfair discrimination, just as rational differentiation might nevertheless amount to discrimination. As was held in Harksen:

‘If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.’"

[80] To succeed with their case, the Applicants must prove all three elements set out in section 11(2) of the EEA.

"81] The applicable test is as per Harksen v Lane NO and others [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 50. where it was held as follows:

‘(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s 8(1). Even If it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution).’"

"83] If differentiation is established, the second question is whether the differentiation bears a rational connection to a legitimate purpose, or put differently, whether the conduct complained of is rational. Even if it is rational, it might still amount to discrimination.

[84] The last question is whether the conduct constitutes unfair discrimination. To determine whether the differentiation amounts to unfair discrimination, a two-stage analysis must be followed. The first stage is to determine whether the differentiation amounts to discrimination and if it does, the second stage is to determine whether the discrimination is unfair."

"94] The Respondent’s case is that the application of the sunset clause was necessary, fair and rational. The sunset clause provided a mechanism to equalise the limited number of converted employees whose remuneration exceeded the maximum permissible remuneration for their level in order to bring them back within the agreed salary bands for the level they were on.

[95] In my view, the sunset clause is rational as it bears a rational connection to a legitimate purpose, namely to serve as an equalisation process."

victims of nepotism

J2055/2014

Lebelo and Others v City of Johannesburg Metropolitian Municipality (J2055/2014) [2024] ZALCJHB 23 (22 January 2024)

30] Do these averments that the protection officers are the victims of nepotism meet the test in Harksen v Lane NO? in my view they do not. Nepotism, in any case, cannot be countenanced, even more so in the case of parliament. However this court is required to determine this dispute in terms of the EEA and nepotism is not a necessary affront to human dignity, in neither the sense contemplated by s 9 of the Constitution, nor in s 6(1) of the EEA. To be neglected because of nepotism implies no characteristic of a person so victimised nor does it invoke any pejorative perspective of such person, whether inherent or adopted. Nepotism differs from, for example racism, where the bearer of authority or of power rejects X because of X’s race and prefers Y because of Y’s race. If what Van der Spuy has done is indeed to prefer his chums to the appellants, ie behaved nepotistically, that conduct, however wrongful, is not unfair discrimination within the purview of s 6(1).’

[75] In short: it is not sufficient to simply allege differentiation or that the differentiation is arbitrary or that an employee’s dignity has been impaired. An applicant must allege a specific ground of discrimination, and must prove that the pleaded ground of discrimination is the basis for differentiation and that it is unfair. There is a distinction to be drawn between differentiation and discrimination and differentiation per se does not constitute discrimination on an arbitrary ground, which must be clearly identified and pleaded.

Retirement age: what constitutes a normal retirement age

JS550/17

Pedra v Wisium SA (Pty) Ltd (JS550/17) [2024] ZALCJHB 45 (26 January 2024)

[41] The age of retirement for employees is not specified in our law. Employers are however, entitled to rely on a normal age of retirement which is often specified in the employer’s internal policies. The normal age of retirement may also be established with reference to the pension scheme that employers participate in.

"[42] In Cash Paymaster Services (Pty) Ltd v Browne,[16] the Labour Appeal Court (LAC) stated as follows:

‘The retirements are dispensations provided for in section 187(2)(b) of the Act is one that works based on the basis that, if there is an agreed retirement age between an employer an employee, that is the retirement age that governs the employee’s employment. This is the case even when there is a different normal retirement age for employees employed in the capacity in which the employee concerned is employed. The provision relating to the normal retirement age only applies the case where there is no agreed retirement age between the employer and the employee.’(Own emphasis)

"

"

[43] In Bos v Eon Consulting (Pty) Ltd,[17] this Court stated as follows with reference to the concepts of an agreed age of retirement and a normal age of retirement:

‘[37] As to these bases referred to, it has to be one or the other. It cannot be both. A normal retirement age can only apply where there is no agreed retirement age…

[38] Turning firstly to an agreed retirement age, there can be no question of what an agreed retirement age means. In order for an agreed retirement age to exist, it has to be shown that the employer and the employee achieved consensus on the actual age of retirement of the employee and that this retirement age gives rise to the compulsory retirement of the employee from the employ of the employer at that age. This agreement need not be in writing, although this would be preferable. A retirement age stipulated in the employment contract of the employee would constitute such an agreed retirement age.’

[39] As to what constitutes a normal retirement age, the Court in Rubin Sportswear said:

‘… What is the normal retirement age depends upon the meaning to be accorded the word “normal” in section 187(2)(b). The word is not defined in the Act. It, accordingly, must be given its ordinary meaning. Chambers-Mcmillan’s SA Students Dictionary describes the word “norm” thus: “You say that something is the norm if it is what people normally or traditionally do”. It further says: “Norms are usual or accepted ways of behaving”. It describes the adjective “normal” as meaning “usual, typical or expected”. The word “normality” is described as “the state or condition in which things are as they usually are”. The New Shorter Oxford English Dictionary describes the word “norm” as meaning, among others “a standard, a type; what is expected or regarded as normal; customary behaviour, appearance”. As to the adjective “normal”, one meaning that the latter dictionary gives is “constituting or conforming to a standard; regular, usual, typical, ordinary, conventional”.

After analysing a number of judgements the court concluded:

“It seems to me that the word “normal” as used in section 187(2)(b) really means what it says. It means that which accords with the norm.”

[40] A retirement age that accords with the norm, as contemplated by section 187(2)(b), can be established both internally in an employer, or externally in a particular industry if there is no norm in the employer itself.

[42] When it comes to the norm in an employer, this must equally be established by evidence. This evidence would include evidence about a practice in the employer, when other employees may have retired, policy provisions of regulation, or pension/provident funds rules or annuity provisions… The easiest way of establishing a retirement age norm in an employer would of course be by way of a retirement policy.

[43] It is not required that employees have to be consulted on, or that they have to agree to, the retirement age stipulated by the employer in the retirement policy. In principle, an employee is entitled to unilaterally fix, and then implement, a normal retirement age…’

[44] With the afore-going in mind, in the present case, the contract between Mr. Pedra and the respondent does not specify his agreed retirement age. What does exist, is a retirement policy and provident fund rules that specify the normal retirement age as 60 years for employees in the category that Mr. Pedra was employed. Therefore, the basis of the age of retirement that is involved is the normal age of retirement. It is not both. Our Courts have said it cannot be both.

[45] The contract of employment refers to both the retirement policy as well as the pension fund and its rules, all applicable and binding on Mr. Pedra.

[46] I find that the dismissal of Mr. Pedra occurred as he had reached the respondent’s normal age of retirement for persons employed in the capacity which he occupied. I find that the respondent followed its retirement policy and procedure to the letter in terms of terminating the employment contract of Mr. Pedra.

[47] I find that unfair discrimination does not arise for the reasons that follow below.

[48] Section 9 of the Constitution makes provision for the right to equality and the prohibition of unfair discrimination on the listed grounds in subsection (3) and reads as follows:

‘(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’ (Own emphasis)

[49] The Employment Equity Act[18] (EEA), is one of the pieces of national legislation that prevents and prohibits unfair discrimination in the workplace.

[50] Sections 5 and 6 (1) and (2) of the EEA provide as follows:

‘5. Elimination of unfair discrimination. – Every employer must take steps to promote equal opportunity in the work-place by eliminating unfair discrimination in any employment policy or practice.

6. Prohibition of unfair discrimination.

(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

(2) It is not unfair discrimination to –

(a) take affirmative action measures consistent with the purposes of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.’

[51] In Lewis v Media24 Ltd,[19] the Court held as follows at paragraph 36:

‘The concept of discrimination is made up of three issues: differential treatment; the listed or analogous grounds; and the basis of, or the reason for, the treatment. Once a difference in treatment is based on a listed ground, the difference in treatment becomes discrimination for the purposes of s 9 of the Constitution and s 6 of the EEA.’

[52] In my view, Mr. Pedra has not established any differential treatment. Mr. Mpati is no comparator of Mr. Pedra. He is not employed in the same category or capacity as Mr. Pedra. Discrimination therefore does not arise and section 187(2)(b) of the LRA accordingly finds no application."

Religion: minority judgement

JA 13/23

Sun International Management Limited v Sayiti (JA 13/23) [2024] ZALAC 52 (21 October 2024)

Employee not working Friday evenings and Saturdays – Obligation to engage in weekend work was reasonably connected to legitimate work-related purpose – Inherent requirement of the job – Company took measures reasonably to accommodate his religious beliefs – However, situation became intolerable – Incapacity inquiry – Dismissal substantively and procedurally fair – Labour Relations Act 66 of 1995, s 187(1)(f) – Employment Equity Act 55 of 1998, s 6.

[1] One of the hallmarks of an enlightened egalitarian society is the right to freedom of religion.[1] However, respect for religious rights is not a confined absolute right; like other rights, freedom of religion exists in the context of other correspondingly important rights of others.[2] They coexist alongside statutory imperatives to eliminate unfair discrimination and to promote vibrant and diverse workplaces.[3]

Religion: majority judgement

JA 13/23

Sun International Management Limited v Sayiti (JA 13/23) [2024] ZALAC 52 (21 October 2024)

[58] I have read the judgment prepared by my colleague Nkutha-Nkontwana JA (first judgment) in which she finds unassailable the Labour Court’s conclusion that the appellant failed to establish that it could not accommodate the respondent without imposing undue hardship on its business operations. Regrettably, I find myself unable to agree with that conclusion.

[61]...The point is not without significance – s 6 (2) (b) of the EEA provides that it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; s 187 (2)(b) of the LRA provides that a dismissal may be fair if the reason for dismissal is based on the inherent requirement of the particular job. The EEA thus provides a specific defence of the inherent requirements of a job as an element of a general fairness defence to a claim of unfair discrimination in any employment policy or practice; the focus of the LRA is on the reason for dismissal. If the reason is based on an inherent requirement of a job, the dismissal ‘may be fair’.

[62]...The appellant thus conceded that ‘there was discrimination’, but contended that the discrimination was fair. What this concession entails is the appellant’s acceptance that by dismissing the respondent for incapacity, it discriminated against him on the grounds of his religious beliefs, but that his dismissal was nonetheless fair because the reason for dismissal was based on the weekend work requirement, that being an inherent requirement of the respondent’s job.

"[63] What constitutes an inherent requirement of the job for the purposes of s 187 of the LRA (and indeed, s 6 of the EEA), has been the subject of a number of judgments by this Court. In TFD Network Africa (Pty) Ltd v Faris[33] (TFD Network) this Court stated:

‘The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.’"

"[75] In sum, the appellant has established that it took such steps that were reasonably available to it in the circumstances to accommodate the respondent’s inability to engage in weekend work on account of his religious beliefs. The reason for the respondent’s dismissal was based on an inherent requirement of the particular job, and thus not automatically unfair The appeal stands to succeed. Neither party pursued the issue of costs, and no order for costs will be granted.

"

Section 6(4), introduced into the EEA, Clause 4, 5 and 6 of the Employment Equity Regulations : pay discrimination claim requires proof that the difference in pay between employees

CA04/2023

Passenger Rail Agency of South Africa v Hoyo (CA04/2023) [2024] ZALAC 57 (6 November 2024)

"[11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value.

[11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value.

[11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value.

"

[12] Applying section 11, this required of PRASA to prove that the alleged discrimination did not take place, was rational and not unfair, or was otherwise justifiable.

[14] A further difficulty with Mr Hoyo’s claim concerned his reliance on his two subordinates as comparators to support his claim. This was when there was no evidence, or even a suggestion, that the work performed by the two subordinates was equal to or of equal value to that of Mr Hoyo.

In Mdunjeni-Ncula v MEC, Department of Health and Another[[ 2021] ZALAC 29; (2021) 42 ILJ 2393 (LAC) at para 20.], this Court found that the comparators relied upon by the appellant did not provide the requisite evidence to show that any differentiation in salary between the appellant and any of the three comparators relied upon was based on discrimination sourced on the ground of gender or sex. Similarly in this matter, the comparators relied upon did not show that the pay differential which existed between Mr Hoyo and the two comparators raised by him constituted discrimination on the ground of race.

[18]... The income differential between him and his subordinates did not relate to the same work or work that was interchangeable or sufficiently similar and it was not shown that any such pay differential amounted to discrimination on the grounds of race. It follows that no discrimination related to the entitlement to receive equal pay for equal work or work of equal value or on grounds of race was shown to exist and that in finding differently, the Labour Court erred.

Manager using k-word to refer to applicant

JS230/20

Mavundla v Frame Leisure Trading (Pty) Ltd (JS230/20) [2024] ZALCJHB 342; (2024) 45 ILJ 2756 (LC) (2 September 2024)

Discrimination on grounds of race – Alleged failures in payroll process that led to losses for company – Emails showing that manager did not want to engage another black person and would prefer white woman – White woman then brought in – Manager using k-word to refer to applicant – Company unwilling to indulge applicant’s failings because she was black – Evidence showing that but for the applicant's race, she would not have been dismissed – Dismissal of applicant declared to be automatically unfair – Labour Relations Act 66 of 1995, s 187(1)(f).

had failed to place a hold on salaries. It was decided that she should be charged with misconduct.

"With regards to Slu….We need to look for a back-up but not a black again. I need someone that I can train in Industrial Relations, HR and payroll. Maybe a young graduate white female. I deliberately want to stay away from the liberal element with political agendas."..."Pretorius called her a “kaffir”. "

[43]...Our courts have stated that: “”Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question”.[6] It is simply disgraceful that Frame took no action in the face of this disparaging and contemptuous conduct by Pretorius.

"52.1 In South African Chemical Workers Union and others v Afrox Ltd[14] Froneman DJP (as he then was) held as follows:

“[32] The enquiry into the reason for the dismissal is an objective one, where the employer's motive for the dismissal will merely be one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here (compare S v Mokgethi & others 1990 (1) SA 32 (A) at 39D41A; Minister of Police v Skosana 1977 (1) SA 31 (A) at 34). The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the 'main' or 'dominant', or 'proximate', or 'most likely' cause of the dismissal. There are no hard and fast rules to determine the question of legal causation (compare S v Mokgethi at 40). I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue (see para [33] below). Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a) . If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further.” (Own emphasis)

52.2 In Kroukam v SA Airlink (Pty) Ltd[15] Davis AJA (as he then was) held:

“In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.” (Own emphasis)"

"

[66] Finally, even if the applicant was guilty of having performed her job in a negligent manner, that must be understood in context."

86.2 The respondent is ordered to pay the applicant compensation equivalent to 24 months wages, less any statutory deductions,

appeal to the Labour Court in terms of section 10(8) of the Employment Equity Act,[1] as amended (the EEA): [9] The question as to whether the application of different multipliers (or no multiplier) to normal Sunday rates of pay in respect of different groups of employees constitutes discrimination against the employees for the purposes of the EEA, is at the core of this matter. (It is not the pay rates themselves which vary, but rather the multiplier that is applied to the relevant employees normal Sunday rate of pay to yield the relevant adjusted Sunday rate of pay when such adjustments are made.)

[43] The question arises as to whether unfair discrimination claims in terms of the EEA can prescribe.

J1529/2

SACCAWU v Lawson (J1529/22) [2024] ZALCJHB 448 (12 November 2024)

"[47] In Barnett and Others v Minister of Land Affairs and Others[[2007] ZASCA 95; 2007 (11) BCLR 1214 (SCA) at para 20.

[6] See also Lombo v African National Congress 2002 (5) SA 668 (SCA) at paras 26-27.] [2007] SCA 95 (RSA)[6], the Court stated as follows:

‘[20] In considering the special plea of prescription, the postulation is, of course, that the allegations underpinning the Government’s claim had in fact been established. Broadly stated, it must therefore be accepted for the prescription issue that the defendants’ occupation of their sites constitutes a contravention of both the Decree and the common law. Departing from this premise, the answer to the prescription defence is, in my view, to be found in the concept which has become well-recognised in the context of prescription, namely that of a continuous wrong. In accordance with this concept, a distinction is drawn between a single, completed wrongful act - with or without continuing injurious effects, such as a blow against the head - on one hand, and a continuous wrong in the course of being committed, on the other. While the former gives rise to a single debt, the approach with regard to a continuous wrong is essentially that it results in a series of debts arising from moment to moment, as long as the wrongful conduct endures (see eg Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A); Mbuyisa v Minister of Police, Transkei 1995 (2) SA 362 (T); Unilever Bestfoods Robertsons (Pty) Ltd v Soomar 2007 (2) SA 347 (SCA) para 15).’

[48] Accordingly, I am of the view that in respect of this issue, the Appellant must succeed."

"[93] The recent Labour Appeal Court decision in AMCU (supra)[AMCU v Chamber of Mines South Africa and others Labour Appeal Court case number JA20/2023 heard on 20 February 2024, judgment delivered on 14 May 2024.] contains elements that are relevant to this matter -

“The Labour Court correctly noted that the test set out in Harksen v Lane NO and others[19] applies in the determination of a discrimination claim under section 6(1) of the EEA; and that in order for the alleged grounds of arbitrary discrimination to qualify as such, these must, objectively, constitute grounds based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner to a listed ground. The unequal treatment alleged must therefore be based on attributes and characteristics attached to a person before it will fall within the meaning of discrimination. In Naidoo and others v Parliament of the Republic of South Africa[[2020] ZALAC 38; (2020) 41 ILJ 1931 (LAC)] this Court made it clear that an “arbitrary ground” must be analogous to a listed ground of discrimination in the sense that it has the potential to impair human dignity in a comparable manner or have a similar serious consequence.

"

[94] The entire scope and background to why different multipliers were applied in respect of work on Sudays has been exhaustively canvassed by PnP in this matter. I am unable to agree that PnP’s conduct in this regard shows that there are grounds based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings … I am in agreement with PnP in this regard.

"[106] The system is designed in a manner that is of prejudice to female employees, directly and indirectly. Kronos, the Sunday roster system does not take into account the personal circumstances of the employees, their gender, whether they have minor or older children or what their childcare and social circumstances are. The Kronos system thus prejudices female employees in relation to the terms of the code of good practice on the regulation of working time.

[107] In Employment Equity Law at 8.8.4[ Employment Equity Law, Klick and Others.] the following is noted –

‘When designating shift rosters, it is important that an employer should be sensitive to the impact on employees, their families and family life. Certain shifts may have disproportionate impact on woman, pregnant woman in particular, married employees and employees with family responsibilities.’

[108] Accordingly, PnP’s practice was discriminatory on the basis of gender."

"[137] In order to illustrate this point, the Commissioner referred to Pioneer Foods[Pioneer Foods (Pty) Ltd v Workers Against Regression & others (2016) 37 ILJ 2872 (LC); [2016] 9 BLLR 942 (LC) at para 50.] where it was held that

‘Differential treatment is ubiquitous in modern life and in the workplace. The EEA does not regulate such differential treatment at all unless and until it is established that it is both “not rational” and constitutes “discrimination”. (To constitute “discrimination” the differentiation must take place on a listed ground or any “other arbitrary ground” as contemplated in s 6(1). The following seminal passage from the Constitution Court in Prinsloo v Van der Linde & another is directly applicable, notwithstanding the different statutory context:

“If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by resort to s 33, or else constituted discrimination which had to be shown not be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct… The courts would be compelled to review the reasonableness or the fairness of every classification of rights, duties, privileges, immunities, benefits or disadvantages flowing from any law. Accordingly, it is necessary to identify the criteria that separate legitimate differentiation from differentiation that has crossed the border of constitutional impermissibility and is unequal or discriminatory “in the constitutional sense”.’"

"Conclusion

[154] The essence of discrimination in the context of employment equity, is the impact that discriminatory conduct has on the employees who are victims of it. As set out in numerous authorities, some of which are referred to above, it goes to the dignity of the employee, to the essence of who they are.

[155] I am of the view that the facts of this matter do not meet the test of a requirement for a fundamental impact on human dignity."

Incomplete