In Solidarity obo Barkhuizen v Laerskool Schweizer-Reneke and Others [2019] 7 BLLR 725 (LC), a primary school teacher was suspended after a photograph of a black child seated apart from white children in the class was circulated on social media. This sparked outrage and protests outside the school, which caused the school to temporarily close.

In this case, four photographs of the two Grade R classrooms were taken by the applicant employee and posted on a WhatsApp group. The reason for the message was that it was the first day of school and the applicant had received numerous calls and messages from anxious parents, and the purpose of the photographs was to alleviate concerns. The applicant had previously explained to the parents the seating arrangements in the class and her approach to address communication difficulties arising from language barriers. This was particularly in light of the fact that this was an Afrikaans medium school and the services of the interpreter had recently been terminated. The applicant then received a call from one of the parents expressing unhappiness that his child and other black learners were separated from white learners in the classroom. The applicant explained that the children are moved around the classroom throughout the day to accommodate individual needs and different daily activities. She also explained that the photograph in question was not of her classroom, but of another classroom where she had not determined the seating arrangements. The other three photographs clearly demonstrated that that there was no separation on the basis of race. The applicant was unable to placate the parent and advised him to escalate the matter to the principal.

A meeting was held between the principal and the two Grade R teachers where they explained the situation and were told that everything was in order and that the complaints would be properly ventilated and addressed. The next day there was a protest outside the school and the applicant was informed that she would be placed on suspension by the Minister of Education with full benefits. An announcement of her suspension was then made and circulated on various social media platforms. This caused the applicant to suffer trauma and public humiliation as she was labelled a racist.

The applicant launched an urgent application to set aside the suspension. The Member of the Executive Council (MEC) admitted that he did not have the authority to suspend the employee and thus the suspension was found to be unlawful as the MEC had exceeded his powers. Furthermore, it was found that the MEC had showed no appreciation for the context in which the photograph was taken and that it was the first of many photographs, the rest of which portrayed the children in a different light. It was held that the applicant should have been given an opportunity to make representations as this would have cleared up the misunderstanding. It is noteworthy that this decision was made prior to the Constitutional Court decision in Long v South African Breweries (Pty) Ltd and Others [2019] 6 BLLR 515 (CC) in which it was held that it is not a requirement to give an employee an opportunity to make representations before being placed on precautionary suspension. However, the suspension must be for a fair reason and it must not cause undue prejudice to the employee. Thus, even if the approach in the Long case had been followed, the MEC had not been able to properly consider whether there was a fair reason for the suspension without properly appreciating all the facts and thus failing to consider representations by the employee went to the heart of the fairness of the reason for the suspension. The Labour Court further criticised the employer’s hasty reaction and found that the employer had caused the applicant unnecessary trauma and humiliation. She had also not been given any reasons as to why she was suspended.

Prinsloo J held that there can be devastating consequences where an employer reacts to unsubstantiated rumours, complaints and media reports. It was held that while racism should be eliminated, it should not be found where it does not exist. The suspension was set aside.

Unfair discrimination on the basis of race and gender

In Sun International Ltd v South Africa Commercial, Catering and Allied Workers Union obo Ramerafe and Others [2019] 7 BLLR 733 (LC), the Labour Court (LC) had to consider whether a salary difference amounted to unfair discrimination. In this case, the respondent employee was promoted to the position of surveillance auditor as part of a restructuring and her remuneration had been adjusted upwards to ensure that she was in the appropriate salary band. Another employee was later recruited for the position of surveillance auditor approximately two years later at almost double the salary. The respondent employee alleged that she was discriminated against on the basis of race and gender because the comparator was a white male.

The employer alleged that the male employee had been recruited from a security company and had better qualifications and more experience than the respondent employee. Furthermore, he was earning in excess of the respondent employee at his former employer at the time and thus the employer had to match his salary and add an additional amount to compensate him for the costs of compulsory benefit schemes of which he had to become a member. The matter was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the CCMA found that there was no justification for the difference in salary. The employer was ordered to place the respondent employee on the same grade as the male employee and to pay her the same remuneration.

The matter was taken on review to the LC. It was held that the requirements for an unfair discrimination claim of this nature was that the employee must perform the same work as a comparator and the work must be substantially the same or of equal value. In this case, a comparator had been identified and the employees performed the same work.

It was found that the CCMA decision was reviewable because the arbitrator made material errors in law and his reasoning had showed a lack of understanding of the law on equal pay. In this regard, the arbitrator found that it was the employee who needed to establish and prove – on a balance of probabilities – that the employer’s conduct was not rational and amounted to unfair discrimination. He failed to appreciate that when the discrimination is alleged on a listed ground such as race and gender the onus is on the employer to prove on a balance of probabilities that the discrimination did not occur or that it was rational and not unfair.

The employer’s justification was that it had to match the male employee’s nett salary when it recruited him and that his higher qualifications and experience came at a premium. The employer used a ‘market forces’ defence and the commissioner did not consider any case law on this defence. He also failed to take into account the factors in reg 7 of the Employment Equity Regulations of 2014, which justify a difference in remuneration such as seniority and experience. He failed to consider the employee’s 30 years’ experience in the security sector and limited experience to the surveillance auditor role finding that other experience was irrelevant.

It was found that the commissioner committed a material error of law as he did not properly consider whether there was a rational, fair or other justifiable reason for the difference in remuneration. Furthermore, the commissioner exceeded his powers when he ordered that the employer must eliminate all forms of salary disparity starting with this dispute.

Exception to unfair discrimination claim

In Gmagara Local Municipality v Independent Municipal and Allied Trade Union obo Mzuza and Others; In re: Independent Municipal and Allied Trade Union obo Mzuza and Others v Gmagara Local Municipality [2019] 7 BLLR 696 (LC), the Labour Court (LC) was required to consider whether it was unfair discrimination to pay employees in a different geographical location more remuneration. In this case, the four employees were employed as electricians by the municipality in Kathu. The municipality also employed electricians at Oliphantshoek on higher grades with higher salaries.

The Kathu employees alleged that they performed substantially similar work and were discriminated on the basis of geographical location. The municipality excepted to the claim on the basis that it alleged that the work was not similar as the Oliphantshoek employees performed low and high voltage work whereas the Kathu employees only performed low voltage. It was also alleged that the applicants had disclosed no cause of action under the Employment Equity Act 55 of 1998.

The LC considered the exception and found that the statement of case would be excipiable if the applicants did not make out a case of unfair discrimination. This is because the employees relied on an arbitrary ground and thus the onus was on the employees to prove that they were unfairly discriminated against.

It was found that the employees had alleged that they performed the same or similar work as comparator employees and they had relied on geographical location as a ground for discrimination, which may be a basis for an unfair discrimination claim. It was held that the statement of claim did in fact disclose a cause of action and the exception was dismissed.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2019 (Sept) DR 28.