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WHEN DOES AN ACT CONSTITUTE UNFAIR DISCRIMINATION ON “ANY OTHER ARBITRARY GROUND”?
In K Naidoo & Others Vs Parliament of The Republic of South Africa the Labour Appeal Court delivered a judgement on 07 May 2020 relating to the above topic. The LAC found that, while nepotism is unacceptable, it does not constitute discrimination on “any other arbitrary ground” as per the meaning of section 6 of the EEA. This, says the LAC, is because nepotism does not assail the dignity of the victims of nepotism.
This raises two questions:
• Should ‘dignity’ be the defining factor for deciding whether a ground qualifies under section 6 of the EEA? Why should arbitrariness per se not the defining factor? and• Does nepotism not assail the dignity of its victim? Why is being told that ‘you are not good enough to be employed by me because you are not related to me’ any less demeaning than being excluded due to illness or family responsibility?
No – nepotism probably won’t pass muster as discrimination on “any other” or “unlisted” arbitrary ground. This is because the notion of “dignity” has taken on a special meaning in the context of past social injustices – especially in South Africa. It is distinct from nepotism which has been practiced throughout history. It is associated more with corruption and notions of unfairness than discrimination.
The test for Discrimination on unlisted grounds was clearly articulated by the Labour court in
Stojce v University of KwaZulu-Natal and Another (2006) as follows –“The test is that the differentiation must impair the fundamental dignity of people as human beings because of attributes or characteristics attached to them. Not every attribute or characteristic qualifies for protection against discrimination. Smokers, thugs, rapists, hunters of endangered wildlife and millionaires, as a class, do not qualify for protection.
What distinguishes these groups from those who deserve protection?
The element of injustice arising from oppression, exploitation, marginalization, powerlessness, cultural imperialism, violence and hardship endured by particular groups or the worth and value of their attributes, are qualifying characteristics that distinguish differentiation from unfair discrimination….”
I do not believe that Nepotism can in any way amount to discrimination. In essence, the only time it can be challenged is if it is in terms of a public entity or against the rules and regulations of an employer.
There are thousands of family businesses that appoint family members in order to keep the business running. This is common practice in the SME Sector and if it is in any way deemed to be an unfair labour practice it would literally destroy the small business sector.Michael Bagraim
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