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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.
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.]
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.
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]
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.
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)
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:
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.
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]
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.
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)
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.
[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.
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
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.
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]
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.
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.
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.
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.
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.
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].
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.
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.
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
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.
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).
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)
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
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).
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.
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.
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.
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".
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.
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.
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
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).
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.
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
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
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
No liability established in terms
affirmative action targets reached
Black owner white candidate preferred, discrimination
Employer responsible to give her access to landlord's workplace
transsexual
damages
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
Harksen v Lane NO 1997 (4) SA 1 (CC).
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.
non-existence of the policy regarding retirement
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).
If black candidates deemed unsuitable, unfair not to have appointed employee
Harksen v Lane & Others 1998 (1) SA 300 (CC) in which the test
Employees strong convictions against extra marital affairs
187(1)(f)
Murray v Minister of Defense [2008] 6 BLLR 513 (SCA), the conduct of the employer must have lacked reasonable and proper cause.
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
Interview health not stated
Inhirent job requirements not shown
Other case law cited
Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC).
the proceedings were stayed and the dispute was referred to arbitration under the auspices of the CCMA.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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
Defence provided by s 187(2)(b) of the LRA. Always vulnerable to being retired after reaching the age of 60.
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.
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.
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.
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.
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.
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.
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.
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.
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.
it was improbable that Ms Ndlovu would have chosen to leave before she had to, as she was in somewhat straitened financial circumstance
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.
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)).
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.
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
Passed retirement age of 65 (67)
some form of consultation was required; appropriate compensation was 3 months remuneration
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
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.
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.
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
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)
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).
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
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)
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
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
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
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.
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
this was existing company policy
Tempory employee
outside list ito s 9 EEA
187(1)(e)
Unfair
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.
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.
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).
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.
Designated person does not have right to preferential treatment
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.
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
