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.labourlawvideos.co.za
This is the second in our series of articles on Walking the Labour Law Tightrope. This week we discuss discrimination in the workplace.
Not all discrimination is unfair. Giving company cars and other perks to managers but not to lower-level employees is discriminatory, but it is not necessarily unfair discrimination. This is because the discrimination is not arbitrary. There is a legitimate reason for favouring managers in this way, namely that such perks are necessary to retain management services by giving them market related packages.
Hiring a black person instead of a white applicant as part of a proper and established affirmative action (AA) policy and in order to satisfy an existing and realistic AA target is also fair discrimination. Having separate toilets for men and women is discriminatory but is not unfair discrimination because it has the practical effect of preventing dangers such as sexual harassment.
But where discrimination does not have a legitimate, practical, and logical purpose it will be found to be unfair. The law prohibits such unfair discrimination on a very wide variety of grounds. These include, amongst others, race, gender, age, illness, family responsibility, gender, sex, belief, and ethnicity.
While not all allegations of unfair discrimination are successful in court those that are successful tend to result in such harsh decisions that they can cripple the employer. In the case of Mutale vs Lorcom Twenty-two cc (2009, 3 BLLR 217) the employee complained that she was being paid less than her white colleagues and that discriminatory remarks had been made about her. She was later dismissed on the grounds that she had failed to obey instructions.
The Court found that:
- None of the allegations of insubordination warranted dismissal.
- The employer had been unable to prove that the employee had truly been dismissed due to failure to obey instructions.
- The real reasons for her dismissal were the employee’s complaints made to the employer of unfair discrimination.
- The employee’s complaints of unfair discrimination were valid, and the employer was guilty of having discriminated against the employee even before she was dismissed.
- The employer was also guilty of dismissing the employee for reasons related to unfair discrimination.
As a result, the Court ordered the employer to pay the employee twenty months’ remuneration for the unfair dismissal and a further twenty-four months’ remuneration for the unfair discrimination. That is, the employer was ‘punished’ not only for the automatically unfair dismissal but also for its discriminatory mistreatment of its employee leading up to the dismissal. It appears that, in effect, the Court believed that the charge of failing to obey instructions was largely a pretext of the employer used to get rid of a black person who was standing up for her constitutional and labour law rights. As a result, the employer was ordered to pay the employee forty-four months’ compensation.
This shows that employers:
- Must never make decisions or take actions for reasons of race.
- Must, when they are faced with unfair discrimination charges, prepare, and present the strongest possible evidence showing that there was no unfair discrimination.
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