Impala Platinum Ltd v Jonase and Others (J698/15) [2017] ZALCCT 39 (24 August 2017)

Principle:

The test for discrimination is a 3 stage enquiry -

  • Firstly, did the employer differentiate between employees?
  • Secondly, did that differentiation amount to discrimination?
  • And thirdly, was that discrimination unfair?

Facts:

The 2014 amendments to the Employment Equity Act provided for the first time the option of an appeal to the Labour Court against an arbitrator's award on unfair discrimination. Traditionally, discrimination cases have been heard in the Labour Court. The 2014 EEA amendments provided (section 10(6)(aA)(ii)) that employees earning below the BCEA threshold could utilise the cheaper, simpler option of referring these disputes to arbitration, but subject to the safety net of either party having a right of appeal within 14 days to the LC against the outcome of the arbitration. This was how this matter came before the LC.

Turning to the facts of this case, the 2 employees alleged discrimination based on pregnancy, both of whom worked underground at the platinum mine. The company's policy provided that it will attempt to place pregnant women in suitable alternative employment on the surface "where reasonably practicable", in order to prevent any risk to the health and safety of pregnant women working underground or their unborn children. The 2 employees were amongst those who were moved to the surface, but the employer could not find alternative places for them (and a number of others). Out of 21 pregnant employees, only 2 had the requisite skills for available administrative posts. The other employees were then told to take their 4 months' paid maternity leave, with a further choice of unpaid maternity leave of up to 6 months. Before going on maternity leave, they were accommodated in the union offices and paid their salaries for about 3 months, even though they were not doing any work for the company, while the company still sought alternative positions.

The 2 employees referred a dispute to the CCMA, alleging unfair discrimination and stated "we want to be treated fair like other pregnant employees". Conciliation failed and the matter was referred to arbitration.

The arbitrator found the employer guilty of unfair discrimination. Whilst recognising that the employer had an obligation to provide a safe working environment, this does not mean that employees should be prejudiced or disadvantaged in the process. The arbitrator found that the employer's maternity policy was unfair and discriminated against pregnant employees, and that the employer had a responsibility to find alternative employment for the affected employees or to pay them.

The arbitrator ordered the employer to pay the employees a total of R98 000 due to loss of salary and R49 000 as compensation, and ordered the employer to amend its pregnancy policy by a specified date to prevent similar unfair discrimination occurring in future. The outcome was appealed to the LC.

The LC noted that the test for discrimination is a 3 stage enquiry -

  • Firstly, did the employer differentiate between employees?
  • Secondly, did that differentiation amount to discrimination?
  • And thirdly, was that discrimination unfair?

The LC highlighted that the employees had based their case on discrimination due to pregnancy, comparing themselves to the treatment other pregnant employees, and yet the employer had offered other pregnant employees suitable alternative employment. The LC thus reasoned that "the treatment of some pregnant women compared to other pregnant women simply cannot constitute discrimination based on pregnancy. They were not treated differently because they were pregnant; they were treated differently from some other pregnant employees who were given alternative employment because they did not have the requisite skills."

On this basis, the LC concluded that the employees had not established discrimination on the ground of pregnancy. The LC also found that it was not within the arbitrator's powers to strike down the policy, as the fairness of the employer's policy was not part of the complaint referred to arbitration. The LC concluded that the employer's policy in not guaranteeing suitable alternative employment for pregnant employees was not unfair - there was no duty on the employer to create non-existent positions for them.

For all these reasons, the LC set aside the arbitrator's award and found that the employer did not unfairly discriminate against the 2 employees.

Extract from the judgment:

(Steenkamp J)

12.   The test for discrimination on a listed ground is by now well known. The first question to be asked is whether there was differentiation amounting to discrimination. If there is and it is on listed ground then discrimination will be established. And then the next step of the inquiry is whether the discrimination was unfair. In order to establish unfairness the commissioner would have had to focus on the impact of the discrimination on the complainants and other persons who are similarly situated. In the context of the EEA, the Constitutional Court in Mbana v Shepstone & Wylie reiterated:

"The EEA proscribes unfair discrimination in a manner akin to section 9 of the Constitution. Apart from permitting differentiation on the basis of the internal requirements of a job in section 6(2)(b), the test for unfair discrimination in the context of labour law is comparable to that laid down by this Court in Harksen.

The first step is to establish whether the respondent's policy differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in section 9 of the Constitution, it is presumed to be unfair.

It must be noted, however, that once an allegation of unfair discrimination based on any of the listed grounds in section 6 of the EEA is made, section 11 of the EEA places the burden of proof on the employer to prove that such discrimination did not take place or that it is justified. Where discrimination is alleged on an arbitrary ground, the burden is on the complainant to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair."

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15.   In this case, the employees complained that they were treated differently from other pregnant employees. Yet the commissioner simply found that the company had discriminated against them because they were pregnant. The complaint, contrary to what the commissioner found, was negated by their comparator being other pregnant women. The treatment of some pregnant women compared to other pregnant women simply cannot constitute discrimination based on pregnancy. They were not treated differently because they were pregnant; they were treated differently from some other pregnant employees who were given alternative employment because they did not have the requisite skills.

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Ultra vires?

26.   As set out above, the complainants never complained about the fairness of the policy on pregnant employees itself; yet the commissioner mero motu ordered Impala Platinum to amend it.

27.   It was not within the commissioner's powers to strike down the policy. It was not part of the complaint before her.

28.   As Murphy J pointed out only last week in South African Reserve Bank v Public Protector in the context of a review application, a functionary may not impose a remedy that goes beyond the original complaint before her. The same goes for this appeal: The commissioner was not empowered to impose the remedy that she did. The fairness of the policy was not part of the complaint before her. And Impala Platinum was not called upon to defend the fairness of the policy as applied to all pregnant employees. The appeal must succeed on that ground as well.

Duty to find suitable alternative employment

29.   The commissioner found that there is an absolute duty on Implats to find suitable alternative employment for pregnant employees and that the failure to do so is per se unfair discrimination. But that is not what the policy provides for, and the policy-which sets out guidelines in any event - was not challenged. The policy aims to ensure that pregnant employees are not exposed to a dangerous workplace, i.e. underground. It states:

"Where a woman is withdrawn from a particular job on grounds of health and safety the company will not guarantee 'risk-free' employment and will only provide alternative employment if such employment is available. It is not a legal requirement nor is it a legal obligation that Implats creates a position to accommodate such an employee."

30.   If the employer cannot find them suitable alternative employment, the maternity policy kicks in. In this case, there were no suitable alternative positions available for the complainants. And in those circumstances, there was no further duty on the employer to create non-existent positions for them. The employer acted lawfully, rationally and in accordance with its own policy.

Conclusion

31.   The complaint was not about the policy itself; it was directed at the way it was applied to these two (initially five) complainants vis-a-vis other pregnant employees. Put differently, the complainants compared themselves to other similarly situated pregnant employees.

32.   The complainants failed to establish any discrimination. The commissioner exceeded her powers when she ordered the company to amend its policy when that was not the complaint before her. And there was no absolute duty on the employer to find alternative positions for the complainants.