Section 6 of the Employment Equity Act (EEA) prohibits the unfair discrimination against any employee on the grounds listed in subsection 6(1). These grounds are termed as “listed grounds” and emanate from the Bill of Rights contained in the Constitution.
Section 6 (1) however, also lists a ground termed “arbitrary grounds”. An arbitrary (unlisted) ground would essentially mean any ground which does not fall within a recognised ground of discrimination and could include a number of circumstances in which discrimination may present itself. This has opened the floodgates for employees to allege that discrimination has taken place on an almost limitless amount of grounds, as the nature of the discrimination is not specifically defined.
Our Courts have found that examples of arbitrary grounds include but are not limited to, mental illness, geographical location, personal hygiene and criminal records. It is, however, clear from what our Courts have found that even though arbitrary grounds could be almost limitless in number, they must still be arbitrary and objective in nature and therefore cannot be based purely on the subjective feeling of the employee.
Due to the vagueness of the definition of an arbitrary ground, there has been a development at the CCMA that employees would refer disputes against employers for alleged discrimination, but due to their inability to relate it to a listed ground, would refer it as arbitrary in nature. They would, therefore, approach the CCMA with general grievances under the guise of discrimination based on arbitrary grounds.
The test for discrimination is set out by our Constitutional Court in Harksen v Lane NO and Others 1998 (1) SA 300 (CC). In order to satisfy the test, it must be shown that the differentiation is based on:
- Attributes, or
- Characteristics that have the potential to impair the fundamental dignity of persons as human beings or to affect them in a comparably serious manner
In NUMSA & Others v Gabriels (PTY) Ltd  12 BLLR 1210 (LC) the Court held that the ground relied on must be clearly identified, and it must be shown that it is based on the factors as set out in Harksen v Lane above.
What this means is that any claim for unfair discrimination MUST be linked to any one, or a combination of grounds listed in section 6(1) of the Act, which includes “arbitrary” ground. Should an employee, therefore, fail to clearly identify on what basis he or she alleges that the discrimination is arbitrary in nature, the CCMA would be unable to hear the dispute before it.
As a creature of statute, the CCMA may only arbitrate disputes which it is empowered to hear in terms of legislation, including the EEA. If alleged discrimination can therefore not clearly be identified as being arbitrary in nature, it would not fall within the definition of “arbitrary” grounds as set out in section 6(1) of the Act and as such the CCMA would lack the jurisdiction to arbitrate the dispute.
In previous articles, we indicated that there might be an influx of referrals to the CCMA relating to discrimination based on an arbitrary ground. These disputes would arise from employees feeling aggrieved about the treatment they received during the lockdown period, whether justifiable or not. The current lockdown period has, certainly, created numerous problems for both employees and employers alike. Many employees may feel that the manner in which they are being treated is unjust and unfair and that their colleagues are not being treated similarly, under these circumstances the employee may feel that the employer is discriminating against him intentionally.
Should you receive such a referral, we advise that you contact one of our regional offices in order for us to assist you in preparation for defending such an allegation which requires specific legal knowledge of the contents of the EEA.