By Kershwyn Bassuday

The purpose of this article is to determine whether the recent amendments to the Employment Equity Act 55 of 1998 (EEA), specifically s 11(2), relate to the impairment of dignity of the employee. The Labour Court (LC) dealt with this issue in Duma v Minister of Correctional Services and Others (2016) 37 ILJ 1135 (LC), which will be explored by this article.

The jurisprudence

In the Duma case, Ms Duma referred a dispute on 1 June 2012 to the Commission for Conciliation, Mediation and Arbitration (CCMA) on the grounds of unfair discrimination. Unsuccessful there, the employee then launched an application in the LC in terms of s 6(1) of the EEA in that she was discriminated on the grounds of her geographical location. She claimed that employees in other provinces who performed the same work, with the same job description were on salary level 9, and she was on salary level 8. In assessing Ms Duma’s case, the court looking at the EEA prior to the 2014 amendments, held at para 20 and 21:

‘Duma relies on s 6(1) of the EEA and on an unspecified ground therein. Section 6(1) provided that:

“(1) 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 and birth.” An applicant bringing a claim in terms of this provision must prove: That there was differentiation which amounted to discrimination. If it is on a ground specified in s 6(1), the discrimination is established. If it is not on a specified ground then whether or not there has been discrimination will depend on whether, objectively, the grounds are based on attributes and characteristics which have the ability to impair the fundamental human dignity of people in a comparably serious manner.’

The LC agreed with the submission that arbitrariness has long been recognised as one of the hallmarks of discrimination and held that the Employment Equity Amendment Act 47 of 2013 (see also PAK le Roux ‘The Employment Equity Act: new amendments set problems and posers’ (2014) 24 Contemporary Labour Law 1) now reflected this by prohibiting discrimination in s 6(1) on any ‘arbitrary ground’. The LC held further –

‘I agree that the ground of geographical location as a basis to prejudice an employee, by paying them less for the same work as another employee in a different location, has the ability to impair the dignity of that person in a manner comparable to the listed grounds and amounts to discrimination.’

What the LC has appeared to do is accept that where unfair discrimination is alleged on an arbitrary ground, there is a need to establish that the alleged grounds have the ability the impair the fundamental dignity of the person in a comparably serious manner. Several CCMA arbitrators have, since the 2014 EEA amendments came into force, similarly required applicants to establish that differentiation ‘impacted on the applicant’s human dignity’ in order to constitute unfair discrimination (see Ndlela and Others and Philani Mega Spar (2016) 37 ILJ 277 (CCMA) at para 21; Govender and Umgungundlovu District Municipality (2016) 37 ILJ 724 (CCMA) at para 36). The question that must be asked is – where does the requirement of a ‘dignity test’ stem from? It is simply not required when assessing an arbitrary ground in s 11 of the EEA or for that matter in its regulations.

The issue of dignity in the workplace

The provenance and applicability of ‘dignity’ stems from our Constitution and comes from Constitutional Court (CC) cases on discrimination outside the workplace and transported into employment law. For instance in Harksen v Lane NO and Others 1998 (1) SA 300 (CC), the court formulated the now famous Harksen test at 325 –

‘Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.’

Fast forward some years and in Pioneer Foods (Pty) Ltd v Workers Against Regression and Others (2016) 37 ILJ 2872 (LC) the court made reference to the above mentioned Harksen test when discussing dignity (see para 22). The issue of constitutionality of unfair discrimination (see also President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) para 41 for a detailed discussion on discrimination and dignity) in the workplace was brought to the fore in Hoffmann v South African Airways 2000 (2) SA 628 (W), where the court held the following at para 25 ‘the determining factor regarding the unfairness of the discrimination’ is its impact on the person discriminated against.

In labour law the dignity requirement relating to arbitrariness could possibly come from Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) (at paras 42 – 43):

‘What then are arbitrary grounds? An arbitrary ground is a ground which is capricious or proceeding merely from whim and not based on reason or principle (see L Baxter Administrative Law at 521-2 relying on Beckingham v Boksburg Licensing Court 1931 TPD 280 at 282).

In my view, without attempting to be exhaustive, unfair discrimination on an arbitrary ground takes place where the discrimination is for no reason or is purposeless. But even if there is a reason, the discrimination may be arbitrary if the reason is not a commercial reason of sufficient magnitude that it outweighs the rights of the job-seeker and is not morally offensive. The discrimination must be balanced against societal values, particularly (as emphasised repeatedly by the Constitutional Court) the dignity of the complainant and a society based on equality and the absence of discrimination.’

It is plausible that our labour law has also been influenced by judgments emanating from the Equality Court. In Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park (2009) 30 ILJ 868 (EqC) at para 25 the court held:

‘On the other hand, the fact of being discriminated against on the ground of his homosexual orientation had an enormous impact on the complainant’s right to equality, protected as one of the foundations of our new constitutional order. Likewise his right to dignity is seriously impaired due to the unfair discrimination.’

Perhaps the origin of the need for an employee’s dignity to be affected comes from the Code of Good Practice on the Handling of Sexual Harassment cases in the workplace (GN1357 GG27865/4-8-2005). Item 5.4 of the current Code says that: ‘The conduct should constitute an impairment of the employee’s dignity’. However, it is important to note that sexual harassment itself is defined as a form of discrimination in s 6(3) of the EEA, which provides that: ‘Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1)’. Prior to the 2014 amendments, s 11 of the EEA provided that whenever unfair discrimination is alleged in terms of the Act, the employer against whom the allegation is made must establish that it is fair. The dignity requirement adds a complication to s 11 of the EEA, where now the complainant bears the onus of proof.

Arbitrary ground seems to be arbitrary

After a brief hiatus the concept of ‘arbitrary’ grounds was reintroduced to our statutory labour jurisprudence by the Employment Equity Amendment Act (for a detailed discussion on this reintroduction and the effect of the explanatory memorandum see D du Toit ‘Protection against unfair discrimination: Cleaning up the Act?’ (2014) 35 ILJ 2623). Discussing what an ‘arbitrary ground’ is, Pioneer Foods, (albeit in reference to equal work and equal pay) considered the following at para 59:

‘Moreover, length of service with the employer concerned as a factor affecting pay levels is not an “other arbitrary ground”, as contemplated in s 6(1) or in the test laid down by the Constitutional Court. Treating people differently in the workplace in accordance with their length of service with the employer does not impair their fundamental human dignity or affect them adversely in a comparably serious manner.’

At para 60 in the Pioneer Foods case there is a furthering in the discussion of this ‘arbitrary ground’ Steenkamp J quotes Du Toit et al Labour Relations Law: A Comprehensive Guide 6ed (Durban: LexisNexis 2015) at 683:

‘And even if the inclusion of an “arbitrary” ground is meant to widen the scope of discrimination in the context of equal pay for work of equal value, the distinction in this case – length of service – is not arbitrary. This wider reading of the new subsection is discussed in these terms by Du Toit:

“[T]he reintroduction of the prohibition of discrimination on ‘arbitrary’ grounds cannot be understood as merely reiterating the existence of unlisted grounds, which would render it redundant. To avoid redundancy, ‘arbitrary’ must add something to the meaning of ‘unfair discrimination’. Giving it the meaning ascribed to it by Landman J in Kadiaka – that is, ‘capricious’ or for no good reason – would broaden the scope of the prohibition of discrimination from grounds that undermine human dignity to include grounds that are merely irrational without confining it to the latter.”

The question that Steenkamp J is trying to answer above is this – what makes an unlisted ground different from an arbitrary ground? According to the CC in Harksen, and as quoted above, there will be discrimination on a listed ground if the action has the potential to impair human dignity. The court looks to Du Toit (op cit), who writes that ‘arbitrary’ must add something more to unlisted grounds otherwise it would be merely a repetition by the legislature. What Du Toit does when trying to define ‘arbitrary’ is infuse it with tones of the Kadiaka case. Surely this goes against well-established principles of legislative interpretation?”’

In his article, Du Toit (op cit), supports his interpretation by showing us that in the new s 11(2) para (a) gives a test for rationality and para  (b) disapproves discrimination as we recognise it from constitutional jurisprudence. Du Toit writes at 2627 that the criteria of ‘unfair’ required by para (c) is problematic and his reading on the issue is that if (a) and (b) are proved then consequently the conduct must be unfair and the requirement in (c), which is an additional ‘unfairness’ must be left up to the courts to determine.

I submit that to read in ‘dignity’ is too awkward. The amended s 11(2)(a), which an employee must prove in the case of alleged unfair discrimination on an unlisted ground, seems to imply that the alleged unfair discrimination, which is not rationally related to a legitimate purpose, will then render the differentiation to be unconstitutional and that further proof that it was unfair in the sense that it is an affront of human dignity or had a similar outcome is not necessary (for further elucidation see IM Rautenbach and E Fourie ‘The Constitution and recent amendments to the definition of unfair discrimination and the burden of proof in unfair discrimination disputes in the Employment Equity Act’ 2016 TSAR 110.).

Conclusion

On a plain reading, the conclusion that the LC in Duma arrives at is that the application of s 11(2) must find that the discrimination is irrational, unfair and affects the employee’s dignity. In my view, this simply cannot be correct and is far too onerous.

Kershwyn Bassuday LLB (UKZN) LLM (UCT) is a lecturer at the University of Cape Town.

This article was first published in De Rebus in 2017 (Sep) DR 34.