In the matter of GIWUSA obo Mandla Tshaya vs African Explosives Limited J2311/14, judgement was delivered on a case of alleged unfair discrimination in which the Applicant had a severe facial deformity which affected his speech. The Applicant applied for a promotion and was informed by a member of the Human Resources Department that his name had been removed from the shortlist because of his speech impediment. Yet, in his view, he had all the requirements and necessary qualifications for the position.
The Applicant alleged that being removed from the shortlist due to his facial deformity, which affected his speech, constituted unfair discrimination. He was adamant during cross-examination that the advertisement for the position did not mention that the incumbent would be required to communicate with external stakeholders. He was also offered another job during a grievance meeting but was unhappy.
The above judgement referred to the following legal principles in the Employment Equity Act (EEA), which were considered before the outcome was decided upon:
Section 6(1) of the Employment Equity Act (EEA) provides 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 any other arbitrary ground”.
Section 6(2) of the Employment Equity Act (EEA) provides that:
It is not unfair discrimination to –
(a) take affirmative action measures consistent with the purpose of the Act; or
(b) distinguish, exclude, or prefer any person based on an inherent requirement of a job.
The Labour Court (LC) judgement also referred to the following case law before the outcome was decided upon:
In TDF Network Africa (Pty) Ltd v Faris, the Labour Appeal Court (LAC) referred, with approval, to the judgment of City of Cape Town v South African Municipal Workers Union obo Damons  9 BLLR 875 (LAC), where the Court instructively expounded the test applicable when determining whether the requirement is inherent in the performance of the job as follows:
“The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to fulfil a legitimate work-related purpose and must be reasonably necessary to accomplish that purpose.”
In SA Clothing and Textile Workers Union and others v Berg River Textiles, the Labour Court (LC) correctly and succinctly put it as follows:
“The employer must establish that it has taken reasonable steps to accommodate the employee’s religious convictions. Ultimately, the principle of proportionality must be applied. Thus, an employer may not insist the employee obey a workplace rule where that refusal would have little or no consequence to the business.”
In South African Airways (Pty) Ltd v GJJVV, the Court found “that the allegation that age was an inherent requirement of the work was not convincing. It is so that if the Appellant had established as a fact that the first Respondent had been discriminated against based on his age because age was an inherent requirement of the job, it might well have discharged its onus because, in terms of Section 6(2)(b) of the EEA, it is not unfair discrimination to ‘distinguish, exclude or prefer any person based on 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.”
Significantly, the Code of Good Practice and Employment of Persons with Disabilities (Government Gazette 9 November 2015) states, “Employers should reasonably accommodate the needs of persons with disabilities. The accommodation aims to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of a job”.
The Code of Good Practice further states, “An employer may not retain employees who become disabled, on less favourable terms and conditions than employees doing the same work, for reasons connected with the disability.” These provisions indicate that a disabled employee cannot be discriminated against compared to other employees who do the same work. To that specific extent, the doctrine of reasonable accommodation applies. A policy must be designed to reduce the impact of the impairment of the person’s capacity to fill the essential functions of the job.
The Labour Court concluded and accepted in the present matter that effective communication was one of the required competencies for the position and found that it was an inherent requirement of the job. The unfair discrimination claim was ultimately dismissed.
Article By: Tammy Koekemoer
Dispute Resolution Official – CEO Bloemfontein