Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC)
Discrimination against a person undergoing gender-reassignment may result in the maximum compensation being awarded, because the employer’s act infringes on a constitutional right.
After a successful interview the applicant was offered employment as an information technology technician. He accepted the position in writing, and thereafter advised the employer that he was in the process of undergoing a gender-reassignment process from male to female. The employer regarded his failure to divulge this information at his interview as a serious case of misrepresentation amounting to dishonesty. The employer considered that his actions amounted to a repudiation of his contract of employment, which it accepted and terminated his employment. The applicant referred an unfair discrimination dispute to the CCMA for conciliation, and thereafter to the Labour Court for adjudication.
The employer denied that it dismissed the applicant for undergoing a gender-reassignment process. It had done so because of his failure to disclose a material fact at his interview. The employer maintained that the court lacked jurisdiction to hear the matter as the dispute was an ordinary dismissal dispute which had to be referred to arbitration.
The court had reference to s 9 of the Constitution 1996 which prohibited unfair discrimination and to the provisions of the EEA and the LRA which gave effect to those constitutional provisions. All three enactments prevented employees being discriminated against on the basis of their sex, gender and other grounds. The only defence against discrimination would be if it were shown to be fair. In the present case the issue of fair discrimination did not arise. The applicant's dismissal was not in dispute. What was in dispute was the true reason for the dismissal. The employer gave the impression that had the applicant disclosed that he wanted to undergo the gender-reassignment process he would not have been dismissed. The court did not think so. The employer would not have employed the applicant in the first place had he disclosed his full intentions.
The court then considered whether the applicant was under a legal duty to make such a disclosure, and found that he was not. It was simply none of the employer's business that he wanted to undergo the process. It was clear from the common cause facts that the dominant reason for the applicant's dismissal was that the employer was not happy that he was going to undergo a gender-reassignment process, and dismissed him for that. The applicant had therefore discharged the evidential burden which raised a sufficient credible possibility that an automatically unfair dismissal had taken place.
On the issue of compensation the court believed it had to send out a message to employers who might still have some hangups about sex change operations that such conduct would not be tolerated. The employer was totally insensitive to the plight of the applicant. Discrimination is painful and is an attack on a person's dignity as a human being. Whether a person rightly or wrongly believes that he or she is trapped in the wrong gender, that should not be a basis to dismiss or discriminate against such a person.
The court took into account that the applicant continued to be employed by his previous employer from whom he did not resign. Compensation of R100,000 was awarded in terms of s 187(1) (f) of the LRA for the automatically unfair dismissal. In terms of s 50(1) and (2) of the EEA the employer was directed to take steps to prevent the same unfair discrimination or any similar practice from occurring in respect of other employees, and to apologize to the applicant.
Extract from the judgment:
13. The applicant’s dismissal is not in dispute. What is in dispute is the true reason for the dismissal. It is trite that section 187 of the LRA imposes an evidential burden upon the applicant to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It is then for the respondent to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 of the LRA for constituting an automatically unfair dismissal.
14. It is clear from the facts placed before this Court that the applicant is a competent employee. He was offered employment which he accepted. It was only after he had disclosed to the respondent that he wanted to undergo a gender re-assignment process that he was dismissed. The respondent’s defence is that he was not dismissed for wanting to undergo gender reassignment surgery but his failure to disclose this which was material. He was under a duty to have disclosed this and had failed to do so. It is clear from the facts placed before this Court that the applicant’s employer, Amava, had a relationship with the respondent. Both companies work in the IT industry. The respondent was impressed with the quality of the applicant’s work and it offered him employment. He was dismissed after he had disclosed that he wanted to undergo a gender reassignment process. The impression that the respondent is giving is that had the applicant disclosed that he wanted to undergo the process, he would not have been dismissed. I do not think so. The only inference that one can draw from the facts placed before this Court is that the respondent would not have employed the applicant in the first place had he disclosed his true intentions. It looked in vain at common law to justify why it should terminate the applicant’s employment since it clearly has issues with the process that the applicant intended to undergo.
15. The respondent’s defence pre-supposes that there was a duty on the applicant to have disclosed that he was a transsexual and that he wanted to go for a gender re-assignment process. The question that should be posed is whether there was a legal duty on the applicant to have disclosed that he wanted to under the said process. If there was such a legal duty, he should have disclosed it and that would be the end of the matter. If there was no such duty then it is the end of the matter for the respondent. It is not clear why the respondent contends that the applicant was dishonest when he in the first place had no legal duty to have informed the respondent that he wanted to go for a gender re-assignment. It might have been different had he been asked this question during the interview and had lied about it. I do not understand what the misrepresentation is that the respondent is referring to. It is not clear how the applicant had misrepresented himself. There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process. The issue of the applicant’s re-assignment process did not arise at the interview. The applicant was after all working in the IT industry where the issue of his sex or gender is not important. His employer had a much mature outlook towards his intentions and gave him its blessings.
16. It is clear from the common cause facts before me that the principal or dominant reason for the applicant’s dismissal was that the respondent was not happy that he was going to undergo a gender re-assignment process and dismissed him for that. The applicant has discharged the evidential burden which raised a sufficient credible possibility that an automatic unfair dismissal has taken place. The respondent has failed to show that the reason for the dismissal was not automatically unfair as envisaged in section 187 of the LRA.
17. The applicant’s claim is founded both in terms of the LRA for the unfair discrimination dismissal and the EEA for the unfair discrimination. The provisions of both Acts do not have a numerus clausus of examples of discrimination. The discrimination that this Court is dealing with fits under both sex and gender. Even if it does not fit neatly under the two it is still covered under section 187(1)(f) which refers to various grounds of discrimination. The section is wide enough to cover this type of discrimination. However, there is an element of gender involved in this case. The applicant wants to change his gender. The respondent has a problem with it. Once he undergoes the sex or gender process, he continues to remain an employee and continues to enjoy the protection afforded to him by the LRA, the EEA and Constitution. He does not become a less worthy human being.
18. The maximum compensation that can be awarded for unfair discrimination is 24 months’ remuneration in terms of section 194(3) of the LRA. The Legislature had deemed it necessary to award twice the amount for compensation in discrimination cases for obvious reasons. It is common cause that after the applicant was dismissed by the respondent he went back to his previous place of employment and continued to work. It is unclear how much he was earning at Amava. The compensation that he is seeking is R508 000 which is twenty-four months’ remuneration. He would have earned R21 166,66 per month at the respondent. It is not clear from the evidence place before me whether he would have been better off at the respondent than he was at his employer. This Court must send out a message to employers who might still have some hang-ups about sex change operations that such conduct will not be tolerated at all. The best way to protect those employees who believe that they are trapped in a wrong gender and who are the most vulnerable employees is to award such compensation that will act as a deterrent to employers from acting in the manner that the respondent did. The respondent was totally insensitive to the plight of the applicant. It sought to use reasons to justify why his services were terminated. Discrimination is painful and is an attack on a person’s dignity as a human being. It is hurtful and has been outlawed by our Constitution, the LRA and EEA in the workplace. Fair discrimination is permissible in limited cases. Even in those limited cases, employers must tread carefully and should be aware that discrimination is painful. We are no longer living in the dark ages or during the apartheid years where some employees had to live in closets. Whatever one’s’ views might be on gender re-assignment those should remain your own views. Whether a person rightly or wrongly believes that he or she is trapped in the wrong gender should not be a basis to dismiss or discriminate against such a person. It is surprising that during this day and age and 15 years into our democracy that some employers would not be mindful of the provisions of section 187(1)(f) of the LRA, the EEA and of Constitution. This is a lamentable state of affairs. What the facts of this case show is an inability by the respondent to have shown empathy towards the applicant.
19. I have taken into account that the applicant, after he was dismissed by the respondent, continued to be employed by his employer from whom he did not resign. It would in my view be just and equitable to order the respondent to pay the applicant compensation in an amount of R100 000 which is the equivalent of just less than five months’ remuneration for his claim brought in terms of section 187 of the LRA.
20. Both counsel for applicant and respondent said that a claim for discrimination could be brought both under the EEA and LRA. The only relief that this Court can award under the LRA is compensation or reinstatement. Since the claim is founded under both the LRA and EEA all that remains to be decided is what relief if any should be awarded under the EEA. The applicant sought damages in an amount of R300 000. The parties had decided to bring this case by way of a stated case. There is simply no evidence placed before this Court around the issues of damages. It is unclear how the amount of R300 000 is arrived at. There is simply no evidence before me how the applicant felt after he was dismissed. The amount awarded in his claim for the automatic unfair dismissal is generous enough.
21. The respondent did not place any facts before this Court that shows that it does not have any policy or practice in place at the workshop against transsexuals. It was contended that the applicant bears this onus. I do not agree. If the respondent had such a practice or policy in place, it would not have dismissed the applicant in the first place. The respondent has not deemed it necessary to show any remorse or to apologise to the applicant but had persisted with some meritless defence.
22. In the circumstances I make the following order:
22.1 The applicant’s dismissal by the respondent amounts to an automatic unfair dismissal in terms of section 187(1)(f) of the LRA.
22.2 The respondent had unlawfully and unfairly discriminated against the applicant on the grounds of his sex and gender.
22.3 The respondent is to pay the applicant R100 000 compensation for the automatically unfair dismissal claim payable within ten days of date of this order.
22.4 The respondent is in terms of section 50(2)(c) of the EEA directed to take steps to prevent the same unfair discrimination or any similar practice occurring in respect of other employees, and to report to this Court within three months from the date of this order on the steps so taken.
22.5 The respondent is in terms of section 50(1) and 50(2) of the EEA directed to apologise to the applicant in writing within one week of this order being made.
22.6 The respondent is to pay the costs of this application.