Moksha Naidoo BA (Wits) LLB (UKZN) is a practicing advocate holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

Naidoo and Others v Parliament of the Republic of South Africa (LC) (unreported case no C865/2016, 12-12-2018) (Prinsloo J).

In Naidoo the court admitted conflicting judgments on whether to subscribe a narrow or wide interpretation to the phrase ‘any arbitrary ground’ as per s 6(1) of the Employment Equity Act 55 of 1998 (EEA), the court in this matter weighed in with its views.

The applicants, all members of the Parliamentary Protection Services, claimed they had been unfairly discriminated against pursuant to the fact that certain of their colleagues received a higher salary for performing the same or similar duties.

Responding to the need to beef up security at Parliament, the respondent employer created a new category of security guards. These newly created posts were filled by guards previously employed by the South African Police Service as the existing guards did not possess the necessary capabilities. It was common cause that the guards filling the new posts received a higher salary as compared to the guards already employed.

Section 6(1) of the EEA states:

‘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.’

While s 6(4) states:

‘A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.’

Relying on the above sections the applicants firstly drew distinction between themselves and the newly appointed guards on the basis that the new category of guards had less experience and performed only part of the duties they did. Despite these differences, so the applicants argued, the new category of guards were remunerated more. Having made this point, the applicants went on to argue that there was no fair, rational or justifiable reason for the wage disparity and, therefore, the respondent’s conduct constituted unfair discrimination on an arbitrary ground.

The legal question before the court was whether the allegation that the wage disparity was informed on a baseless, irrational, unfair, unjustifiable and capricious decision of the employer, constituted an ‘arbitrary ground’ for purposes of s 6(1) read with s 6(4) of the EEA.

The applicants argued that the phrase ‘or on any other arbitrary ground’ should be afforded a wide interpretation. On this approach once an employee establishes that the reason for the wage discrepancy was irrational or unjustified; then the employer’s action constitutes unfair discrimination on an arbitrary ground.

The respondent argued for a narrow interpretation whereby the ground relied on to establish unfair discrimination ‘must be analogous to a listed ground of discrimination, in the sense that it has the potential to impair upon human dignity in a comparable manner, or have a similar serious consequence’ as compared to discrimination on any other listed ground.

The court began by examining the conflicting judgments over this issue. In Pioneer Foods (Pty) Ltd v Workers Against Regression and Others (2016) 37 ILJ 2872 (LC) the court adopted a narrow interpretation of the phrase under review. This approach was followed in Ndudula and Others v Metrorail – Prasa (Western Cape) (2017) 38 ILJ 2565 (LC) and in Sethole and Others v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC) where the court in that matter held:

‘In simple terms, the phrase “arbitrary” in the context of the unlisted grounds in terms of section 6(1) of the EEA is not a synonym for “irrationality” or even “unlawful”. They are different concepts. Something may therefore be irrational or unlawful, but would not be discrimination, without also establishing the “further element” … .’

More recently, however, in Chitsinde v Sol Plaatje University [2018] 10 BLLR 1012 (LC), the court supported a wide interpretation and found that a decision of the employer, which was found to be irrational, fell within the scope of an arbitrary ground for purpose of s 6(1).

The court in casu found that it was bound to follow the decision in the Pioneer Foods and Metrorail cases.

In justifying its reasons for accepting a narrow interpretation over a wide interpretation the court held:

‘… section 6(1) of the EEA does not prohibit differentiation, arbitrariness or arbitrary discrimination; it prohibits unfair discrimination on an “arbitrary ground”. It prohibits discrimination through the phrase “or on any other arbitrary ground” and not “any arbitrary ground”. The wording of the section in this regard is significant.

“Arbitrary ground” provided for in section 6(1), read in conjunction with section 11(2), makes it clear that the irrationality of differentiation per se will not win a discrimination case based on an arbitrary ground. The conduct complained of must amount to unfair discrimination in that it must cause an injury to human dignity. Discrimination has to exist to begin with before rationality is considered. Irrationality does not win a case, the irrationality of discrimination does.

Differentiation per se does not constitute discrimination. Differentiation on a specified ground of discrimination is presumed to constitute unfair discrimination, which presumption is rebuttable. Given that an arbitrary ground is synonymous with an unlisted/unspecified ground, the test for whether discrimination is established, is that set in [Harksen v Lane NO and Others 1998 (1) SA 300 (CC)] namely, if there is differentiation based on an unspecified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner.’

Applying the narrow interpretation to the facts, the court found that although the applicants may have had reason to feel aggrieved in that the wage disparity may well be irrational, they had, however, failed to demonstrate that the ground relied on to establish unfair discrimination, was a ground that impaired their human dignity comparable to a listed ground. For this reason the court found that the applicants failed to establish unfair discrimination on an arbitrary ground and dismissed their claim with no order as to costs.

This article was first published in De Rebus in 2019 (March) DR 31.