What acts by an employer are defined as "unfair discrimination"?

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Ivan Israelstam

Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on twenty arbitrary grounds, including: race, age, disability, sex, and many others.

Discrimination at the workplace need not always be unfair. For example, giving company cars to managers only does not discriminate on arbitrary grounds. Managers who get cars do so because of their senior status in the establishment and other employees are therefore being fairly discriminated against.

Unfair discrimination can take many forms. For example, if an employee is sexually harassed this is a form of unfair discrimination based on sex. If a worker is paid less than his/her colleagues because he is male or she is female this would constitute prohibited gender discrimination. If a job applicant is unsuccessful because he/she is white this could be found to be unfair on the grounds of race. Where an employee is unnecessarily sidelined because he/she is disabled this could be unfair discrimination. It is also contrary to law to dismiss a disabled employee who has been incapacitated due to injuries unless the employer has first made every effort to avoid such dismissal through the implementation of a proper incapacity procedure.

For example, in the case of: Standard Bank of South Africa vs CCMA & others (2008, 4 BLLR 356) the employee, Ms Ferreira was dismissed after being injured in a motor accident whilst on duty. Her position was Mobile Loans Consultant, a job that required travelling. After her accident Ms Ferreira found travelling painful and the employer therefore gave her a light administrative post. However, she requested a more responsible position as the admin post was not very challenging. The bank assigned her paper shredding work, which she found demeaning and physically painful. She asked for a more comfortable chair and a head set so that she could do telesales but the bank ignored these requests. The bank later informed Ms Ferreira that they were going to transfer her to the loans department but later terminated her employment on the grounds of incapacity due to continuing absenteeism.

The CCMA found that the employer had failed to consult with the employee about the head set and to take reasonable steps to try to accommodate her - as was required by Schedule 8 of the Labour Relations Act. The bank also turned down the employee’s application to be placed on early retirement. The arbitrator therefore ordered the bank to pay the employee compensation for unfair dismissal. The Bank then referred a review application to the Labour Court. According to the report the Court found that the failure of the bank to accommodate Ms Ferreira constituted unfair discrimination and that the arbitrator’s decision of unfair dismissal was reasonable. It therefore dismissed the review application and ordered the bank to pay the employee’s legal costs.

The outcome of this case has significance in a number of areas, namely:

• The labour law is highly protective of employees
• Where employees have been injured, especially if this occurred on duty, the employer is advised to investigate very carefully the extent of the employee’s injuries and to seek alternative ways of dealing with the employee’s resultant absenteeism.
• It is insufficient for employers to try to accommodate disabled or injured employees. Employers are required to explore all avenues of accommodating such employees and to do everything reasonable to avoid termination.
• Where the Labour Court believes that a party has come to Court with a weak case it will not hesitate to award legal costs against it.

In addition to the tough approach of the courts, the August 2014 Employment Equity Act amendments allow employees and job applicants to sue employers on an infinite number of discriminatory grounds - in addition to those mentioned in the EEA.

Employers are therefore strongly advised to engage the services of their most expert labour law specialist in order to:

• Review all their human resources and industrial relations practices and policies in the interests of checking for weaknesses, incompleteness, unwarranted assumptions and discriminatory aspects. This applies regardless of whether or not such practices appear to be for the good of employees, for the sake of safety, affirmative action or for reasons of inherent requirements of the job.

• Assess a variety of workplace issues that may require decisions that are practical yet have to comply with labour law. Due to the fact that labour law protections of employees are so broad and so open to judicial interpretation employers need to get expert advice before making any decision that could affect employees directly or indirectly.

• Ensure that all managers and other decision makers are trained in the endless hidden dangers for employers arising in labour law.

Losing unfair discrimination cases in court is not only financially costly but damage to the employer’s reputation and industrial relations can have an even worse effect on the employer’s market position and long-term viability.

BY: lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to www.labourlawadvice.co.za. This article first appeared in The Star.
To buy our e-book, “Walking the New Labour Law Tightrope” please go to www.labourlawadvice.co.za.

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