Discrimination is always a touchy subject and it is no different in the sphere of employment law. It can often be more sensitive as there are many personalities at play in a work environment. Employers must ensure that all Employees’ rights are always protected.
There is no actual definition of discrimination in South African law however the Employment Equity Act (EEA) and our Constitution explain the grounds on which a person may not be unfairly discriminated against.
Chapter 2 of our Constitution contains the Bill of Rights. Section 9 protects every Citizen’s right to be treated equally before the law and that every Citizen has the right to equal protection and benefit before the law. Section 9 defines the grounds on which a person may not be unfairly discriminated against.
Section 6(1) in the EEA reiterates the grounds in the Constitution and states them as being that:
No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.
Of interest to note is that in addition to the grounds in the Constitution, the EEA specifically includes the grounds of family responsibility and HIV status.
Whilst one must be mindful of unfair discrimination, there are grounds on which discrimination may be deemed fair. Section 6(2) of the EEA defines these as being:
- Take affirmative action measures consistent with the purpose of the Act; or
- Distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.
Section 6(3) explains that harassment of an Employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).
Furthermore, in terms of subsection (4), Employers must be careful as a difference in the terms and conditions of employment between Employees of the same Employer performing the same or substantially the same work, or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1) above, is classified unfair discrimination.
S187 of the Labour Relations Act (LRA) makes it clear that a dismissal based on unfair discrimination, if referred by a dismissed Employee to the CCMA, is classified an automatically unfair dismissal which carries the harsh penalty of a maximum compensation of 24 months’ salary payable to the Employee, once successfully proven of course.
A claim by an Employee of an unfair dismissal based on discrimination, as with other reasons for an unfair dismissal, must be referred to the CCMA within 30 days of the date of dismissal. If an Employee wants to lodge an unfair discrimination dispute against his/her Employer, it must be done within 6 months of the date of the act or omission. The matter has to be conciliated at the CCMA, however if the Employee chooses to refer the matter further it can remain in the CCMA to be heard by way of an Arbitration, if both parties agree to have the CCMA arbitrate the matter alternatively, the matter must be referred to the Labour Court for adjudication.
It is very important for Employers and Employees to take heed of section 11(1) of the EEA which regulates the burden of proof in discrimination matters. This section explains that if unfair discrimination is alleged on a ground listed in section 6(1) of the EEA as reflected above, 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.
Subsection 2 provides that if unfair discrimination is alleged on an arbitrary ground, the Complainant must prove, on a balance of probabilities, that:
(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
(c) the discrimination is unfair.
Section 50(2) of the EEA explains that the CCMA (by virtue of Section 48(2) thereof) or the Labour Court, depending on where the dispute is heard after Conciliation fails at the CCMA, may make any appropriate Arbitration Award or Court Order, including:
(a) Payment of compensation by the Employer to that Employee;
(b) Payment of damages by the Employer to that Employee;
(c) An Order/Award directing the Employer to take steps to prevent the unfair discrimination or similar practice occurring in the future in respect of other Employees.
As can be seen, matters regarding alleged discrimination in the workplace, and in general, are very complex and we thus advise Employers and Employees alike, to seek legal advice before venturing into such a matter. The repercussions can be detrimental to either party and it is therefore very important to have good legal insight into such a claim by an Employee, and the defence thereof by an Employer.
Kylan Le Roux