Section 6 (1) of the Employment Equity Act 55 of 1998 provides that no person may unfairly discriminate, directly or indirectly, against any employee in any employment policy or practice. Discrimination includes sex, race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

An employee who claims to have been unfairly discriminated against by their employer may refer the dispute to the CCMA or appropriate Bargaining Council within six months from when the alleged discrimination occurred. 

An employee can refer the matter to the Labour Court if the dispute remains unresolved after conciliation. An employee may refer the dispute to the CCMA for arbitration if the employee alleges unfair discrimination on sexual harassment or if the employee earns below the current earning threshold, which is currently R224 080.48 per annum. The matter can be referred to the CCMA for arbitration if all parties to the dispute consent to arbitration of the dispute.

What does the law say?

The Employment Equity Act states that if unfair discrimination is alleged on a listed ground, as set out in section 6 (1), the onus falls on the employer to prove that the discrimination did not occur or did occur but is rational and justifiable. 

Suppose discrimination is alleged on an arbitrary ground. In that case, the onus is on the employee to prove that the actions by the company are not rational and the conduct amounts to discrimination, which is unfair. 

The CCMA or Labour Court can award an employee compensation and damages and can further direct a company to take steps to prevent discrimination in the future. 

The law sometimes allows an employer to apply ‘discrimination’ in its labour practices.  An example is affirmative action practices or discrimination based on the inherent requirements of a particular job.

Case Study

The Constitutional Court recently dealt with discrimination issues in Damons v City of Cape town [2022] ZACC 13. The employee was employed as a firefighter until he was injured on duty due to the company’s lack of correct safety procedures. The company began an incapacity investigation to determine whether it could still employ the employee, taking into account the Code of Good Practice on Employment of Persons with Disabilities. 

The employee was accommodated in an administrative role. He requested to be promoted to a senior firefighter and asked that the company not require him to meet the fitness requirements for the job. The company refused because it had accommodated him and said he didn’t meet the requirements. The employee then referred an unfair discrimination case against the company. 

The Labour Court found that the company’s actions amounted to unfair discrimination in terms of section 6(1) of the Employment Equity Act. The company appealed to the Labour Appeal Court, which overturned the Labour Court’s judgment and found that the employee couldn’t perform the essential functions of a senior firefighter. 

They also found that the Company had not unfairly discriminated against the employee. The employee then appealed to the Constitutional Court, which held that the inherent requirements of a job were a complete defence against a claim of unfair discrimination.

The Constitutional Court further stated that reasonable accommodation of an employee means to try to place someone on an equal footing with others. This only extends to the extent that a person can fulfil the inherent requirements of a job. Allowing any other interpretation of this would simply result in companies having to accommodate people who cannot meet the inherent requirements of a job, which was not the legislature’s aim.  

Should one of your employees be injured on duty or become unable to perform their job anymore, it is essential to contact Invictus to ensure that you follow the correct procedures as required by the law.