Section 6(1) of the Employment Equity Act, as amended states 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.
If differentiation between employees takes place on one of the listed grounds above discrimination is presumed. The onus would then be on the Employer to prove on a balance of probabilities that such discrimination did not take place as alleged or is rational and therefore not unfair. What would happen however when unfair discrimination is alleged on a ground that is not listed in Section 6(1) of the Employment Equity Act? Such a complainant may then opt to rely on an arbitrary ground.
Since employees often rely on the term arbitrary ground in unfair discrimination disputes, it is imperative that employers understand what this term means. In Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) an arbitrary ground was interpreted as conduct which is capricious or proceeding merely from whim and not based on reason or principle, in other words, irrational.
Employees may not however merely state there is unfair discrimination and that such discrimination is based on an arbitrary ground. In S Ndudula & 17 Others v Metrorail -PRASA (Western Cape) (C1012/2015) ZALAC it was held that where a complainant alleges unfair discrimination on an arbitrary ground the complainant is required to define the ground and has the burden of proof. An employee would, therefore, be required to identify the arbitrary ground on which he or she relies and furthermore prove that his or her human dignity is affected because of this ground.
If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities that:
- The conduct complained of is irrational;
- The conduct complained of amounts to discrimination; and
- The discrimination is unfair
Dispute Resolution Official – East London