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The CCMA ruled on this issue in 2019 in case number WEGE722-19. That ruling was in favour of the job applicants. This was based on the point that job applicants are not earning the pay for the job that they applied for, and the applicants would not have been able to afford to go to the Labour Court. The Commissioner therefore ruled that the discrimination matter must be arbitrated.
When dealing with nepotism, one needs to consider K Naidoo and others v Parliament of the RSA (CA 4/2019) (handed down on 7 May 20219). In this matter, the Labour Appeal Court held that nepotism does not meet the test for discrimination set out in Harksen v Lane.
Nepotism is not necessarily an affront to human dignity. It differs from racism. Thus, nepotism may be considered wrongful, it is not a form of unfair discrimination within the scope of section 6(1) of the EEA. Even if a person alleges discrimination on the ground of ‘birth’ as per the given facts, it is unlikely that such discrimination would be found to be unfair.
An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia difference personal circumstances, the severity of the misconduct or on the basis of other material factors [See: Southern Sun Hotel Interests (Pty) Ltd v CCMA and others (2009) 11 BLLR 1128 (LC)].
The parity principle in nature should be applied with caution. Each case should be decided on its own facts and circumstances. The parity principle is not intended to profit or benefit employees who commit serious acts of misconduct. Therefore, the employees who operate heavy machinery, owing to the gravity of their contravention (i.e. higher risk to heath and safety) and surrounding circumstances, may receive a harsher sanction. This would be the same also even if there is a zero tolerance policy.
It is possible for the content of the conciliation meeting, even if same was off record, to be used as evidence. The amended rules of the CCMA which came into effect on 1 March 2020, in particular Rule 16, provides that:
(1) Conciliation proceedings are private and confidential and are conducted on a without prejudice basis. No person may refer to anything said at conciliation proceedings during any subsequent proceedings, unless the parties agree in writing or as ordered otherwise by a court of law.
(2) No person, including a commissioner, may be called as a witness during any subsequent proceedings in the Commission or in any court to give evidence about what transpired during conciliation unless as ordered by a court of law or a Commissioner conducting an arbitration.
Therefore, in the event the employee alleges that he or she was coerced into signing the agreement, the Labour Court does have the authority to make an order directing the parties to the conciliation to disclose the content of the conciliation meeting i.e. what happened during conciliation. That information would be material in determining the validity of the settlement agreement and therefore the Labour Court may order such evidence to be admitted.When one considers section 41 of the Basic Conditions of Employment Act (“BCEA”), it is evident that “employees” are entitled to severance pay for each completed year of continuous services with that employer. The definition of the word “employee” in the BCEA is not subject to the nature of the contract of employment. In other words, even if a person is in a fixed-term contract he or she falls within the definition of the word “employee”. Therefore, when one considers the set of facts, the individual has been an “employee” from the inception of the fixed-term contract.
The remaining question is whether or not “there was continuous service with the same employer”. Some guidance is provided in this regard by section 84 of the BCEA which provides that the length of an employee’s previous employment with an employer must be taken into account if the break between the periods of employment is less than one year. In the given facts there is and/or was not even a break. Therefore, it is my view that the employee has been in continuous service with the same employer and his or her employment during the fixed-term contract must be taken into account for the purposes of calculating the severance pay which is due.
Despite the upliftment of Covid restrictions, same does not remove the employer’s obligation to ensure health and safety of employees in the workplace. The employer still has the responsibility to provide a safe working environment. Therefore, the employer still needs to protect employees at the workplace from any risk that may arise from Covid. The upliftment of restrictions does not necessarily mean that Covid does not exist. It is for the aforementioned reason that some employers can still implement and/or retain their policy which require employees to wear masks – that is a safety measure.
