POPCRU and Others v Department of Correctional Services and Another [2010] 10 BLLR 1067 (LC)

Principle:

If an employer differentiates for no good reason between male and female employees with regard to enforcing the dress code, this may constitute unfair discrimination on the basis of gender. A dismissal for failing to comply with an instruction to adhere to the dress code under such circumstances, may be automatically unfair.

Facts:

Five male officers employed by the Department of Correctional Services who wore their hair in dreadlocks received a written instruction requiring them to comply with the Department’s Dress Code by “attending to their hairstyles”. They were requested to advance reasons by a certain date why corrective action should not be taken against them in the event that they failed to comply with the written instruction. They refused to carry out the instruction. Each one contended that his dreadlocks were worn either for religious or cultural reasons. Following a disciplinary inquiry all five were found guilty and were dismissed. They approached the Labour Court seeking an order declaring that their dismissal was automatically unfair as contemplated by section 187(1)(f) of the LRA, amounting to unfair discrimination on the basis of their religion and culture in terms of section 6 of the EEA.

The Court found an overwhelming probability in favour of the employees’ version that they kept their dreadlocks because of belief in Rastafarianism or their belief in cultural practices. The court said that it could not be doubted that the impact of the instruction to cut the dreadlocks had a devastating effect on the employees’ beliefs.  But the court also recognized that the purpose sought to be achieved by the dress code was the maintenance of discipline to improve security measures in prison. The court made a great deal that the employees voiced no protest when the dress code was introduced. By failing to assert their rights at that stage, the instruction issued by the employer was justifiable and reasonable in the circumstances. The court found that it had not been shown that employer discriminated indirectly against the employees.

There was direct discrimination in that female correctional officials were permitted to wear dreadlocks. There were other distinctions in the Dress Code based on the biological difference between men and women. The court held that it was never made clear why the biological differences between men and women justified discriminating between them. No evidence was produced of a basis for discriminating between male and female correctional officers in respect of dreadlock hairstyles. The employees thus succeeded in proving that the employer did discriminate against them on the basis of gender. It had therefore been shown that the dismissals were automatically unfair.

Extract from the judgment:

[231]   In relation to the extent to which the rights or interests of the victim of the discrimination have been affected, it needs to be said that the applicants had a strong faith in the practice which was the basis for the keeping of their dreadlocks. The right to practice their faith was adversely affected and their dignity was no doubt impugned. The applicants had a right to their faith. In my view, they erred by failing to assert that right. The consequence is that the practice by the respondents, through the instruction issued by the second respondent, was justifiable and reasonable in the circumstances. The presumption of unfairness has therefore been negated by irrefutable evidence. It has to be borne in mind that the existence of a right is one thing and the exercise thereof is another. Accordingly, it had not been shown that the respondents indirectly discriminated against the applicant employees.

[232]   Quite some time and effort were spent by the parties on the issue of the dress code. What initiated the dismissal of the applicant employees was the issue of the instruction by the second respondent followed by the disciplinary hearing. The investigation should, therefore, have been about the legitimacy and reasonableness of the instruction. The dress code merely formed the basis of the legitimacy of the instruction issued by the second respondent. For purposes of this judgment, I found it unnecessary to have had to deal with the issue of the dress code alone, believing that the final answer to this matter will provide the necessary determination of that issue.

[233]   I now return to the gender discrimination issue. The basis on which the respondents’ counsel, Mr Schippers, appearing with Mr O’Brien submitted that the applicants were not pressing their claim on gender discrimination is not supported by the pleadings and the evidence, as already pointed out. It was submitted that the gender discrimination had no merits on two reasons. The first was that the applicants themselves conceded that there were distinctions in the dress code because of the biological difference between men and women, especially in this case.

[234]   The second, it was said lay in the second respondent’s answer under cross-examination as providing a complete answer. He said that the female officials were permitted to wear dreadlocks and that a distinction needed to be made here because female officials were different from males and the dress code marked that difference and for him or any manager to say if a male official wanted to wear pantyhose and high heels and the manager declined permission and that member said it is discrimination, that would not be discrimination. It was a provision that was made by the dress code.

[235]   It was never made clear why the biological differences between men and women had to justify discriminating among them. The biological differences between Blacks and Whites would never be an acceptable basis for racial discrimination which constitutes the very said past of this country. Gender based discrimination in fact forms a listed ground on the basis of which dismissal would be automatically unfair both in terms of section 187(1)(f) of the Act and section 6 of the EEA. Both of these sections must be seen against the background of the provisions of section 9 under the Bill of Rights of the Constitution 108 of 1996. The relevant subsections are (1) and (2) which read:

“(1)Everyone is equal before the law and has the right to equal protection and benefit of the law;
(2)Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”

[236]   The second explanation suffers from a similar discrepancy as was the first. In addition, legislated discrimination is not by that fact alone justified and reasonable. Racial discrimination was legislated and protected by legislation in the past. That fact alone did not render it fair. That a differentiation between male and female officers was provided for in the dress code does not mean that such differentiation was fair. Factors for the determination of fair discrimination have been outlined and referred to. No evidence was led by and on behalf of the respondents as the basis for discriminating between the male and the female correctional officers when it came to the keeping of a dreadlock hair style. One has to guard against a bias in favour of a view held by some that hair platting is a practice for women and not men and thus using that as a difference between men and women. The view that male correctional officer who keep dreadlocks may compromise security in that prison inmates may use dreadlocks as a means of escape, by pulling them, was not supported by any evidence. Female correctional officers are not immune from such vulnerability. Evidence of the second, fifth and sixth applicants was that they kept their dreadlocks neat and covered with uniform hats.

[237]   The factual basis on which it can be said that the instruction of the second respondent, as based on the dress code, was reasonable and justifiable and therefore covered by the provisions of section 36 of the Constitution, 1996, has, therefore, not been successfully laid. Mr Ndebele’s evidence on the necessity of the dress code for prison officials is not the issue. The need to draw the differentiation in that code has been the issue. That Rastafarian correctional officers would stand out and an undesirable association between then and the Rastafarian prison inmates was likely to take place, was rather speculative and devoid of any evidential support. The fear of Mr Ndebele that Rastafarian correctional officers were likely to be manipulated by prison inmates is nothing but a prejudicial bias against these officials. Not one example of such an instance could be given by him, yet it was the undisputed evidence of the applicants that they had had their dreadlocks for sometime before the intervention of the second respondent.

[238]   Accordingly, the applicants have succeeded in proving that the respondents did discriminate against them on the basis of gender. The respondents have on the other side not succeeded in rebutting the presumption on the unfairness of the instruction issued by the second respondent which was a precursor to the dismissal of the five applicants. It has therefore been shown that the dismissal of each of the five applicants on the basis of gender was automatically unfair. I consider it unnecessary that the further grounds on which the applicants relied to attack the fairness of their dismissal be examined.