In a recent case, dealt with by CEOSA on behalf of one of our members, the CCMA addressed a complaint of unfair discrimination on the grounds of race. This ruling provides key insights for employers regarding the importance of maintaining fair and consistent employment practices to avoid claims of racial discrimination. It further explains the elements considered and the assessment process used by Commissioners when adjudicating these types of disputes.
The case involved a farmworker (guided by his union) who alleged that he had been discriminated against on the basis of race after a verbal altercation with his superior. The Applicant’s request for compensation in the amount of R500 000.00 as a remedy to the dispute is a reminder that even subtle forms of discrimination can violate the law, and employers must ensure that their practices are free from any racial bias, intentional or otherwise.
The Commissioner clearly indicated the approach that Commissioners take in the analysis of this dispute.
Legal Principles and Assessment Process for an Unfair Discrimination Dispute
- Commissioners will always commence with a credibility analysis of all witness’s credibility. We will invite readers to read the following article in this regard (https://ceosa.org.za/a-peak-behind-the-curtains-of-the-credibility-of-witness-testimony/).
- The statutory setting
The 1996 Constitution (“The Constitution”)
Section 9(3) of the 1996 Constitution of RSA states that “the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
Furthermore, Section 9(4) of the Constitution states that “no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
Employment Equity Act 55 of 1998 (“the EEA”)
Section 6(1) of the EEA provides:
“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.”
The burden of proof when discrimination is alleged on a listed ground
Section 11(1) of the EEA states:
“(1) If unfair discrimination is alleged on a ground listed in section 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.”
The ground for alleged discrimination must be identified at the onset
In pursuing a claim of unfair discrimination, an employee must select one (or more) of the “listed” grounds in Section 6(1) of the EEA, or he can identify an “arbitrary” (unlisted) ground (or grounds) contemplated by the same section.
The Labour Court held in Tshazibane vs Montego Per Nutrition and others that “if an employee is to prevail in a claim of unfair discrimination, he must, as a point of departure, lay a proper foundation for such a claim. This is a sine qua non (an indispensable requirement). In the absence of a valid ground of unfair discrimination, the claim would collapse. One cannot put something on nothing. It is an exercise in futility to conduct a trial or arbitration about alleged unfair discrimination in the absence of a legitimate ground of unfair discrimination on which to base the claim.”
Prima facie case
The employee must establish a prima facie case; in other words, he must establish a sufficient basis for the claim that one, he was treated differently, and two, the different treatment is linked to the identified ground.
- The Test for Discrimination
The Constitutional Court set the following test in Harksen vs Lane 1998 (4) SA 1 (CC):
Questions to be answered:
- Was there a differentiation or different treatment?
- If NO differentiation, that will end the enquiry.
- If YES, on what ground/s was the employee subjected to different treatment:
- Listed Ground Section 6(1) of EEA:
This is discrimination which is presumed unfair in terms of the Constitution.
The onus here rests on the employer to prove that either the discrimination did not take place, or, if it did take place, that it was rational and therefore not unfair or that there was another justifiable reason.
- Arbitrary Ground:
In this case, it is not presumed discrimination.
The Complainant (Applicant) must discharge the onus showing that the conduct was (1) not rational, (2) amounted to discrimination, and (3) that this discrimination was indeed unfair.
The CCMA’s Decision
In the matter referred to above, the CCMA found in favour of the employer because the employee failed to prove that the treatment amounted to differential treatment and that it was merely an altercation between the employee and superior that led to the use of insulting and/or abusive language. Therefore, the Applicant party failed to cross the very first hurdle of the test.
It must be noted that, in this matter, the superior was subjected to a final written warning for the transgression and was also instructed by the employer to apologise to the Applicant employee. This emphasises the benefit for employers dealing with allegations of discrimination and/or inter-employee misconduct swiftly and decisively.
Article By Jaundré Kruger
National Manager at Consolidated Employers Organisation (CEO SA)