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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at maternity rights for men? We also look at three new cases: The first looks at a recent LAC decision on whether regional demographics have to be considered in implementing employment equity policies. The second looks the obligations of an employer towards an incapacitated employee before dismissing him/her. The third looks at a case of unfair discrimination because a male employee was refused maternity leave.

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Regional or national demographics?

Several employees applied for particular posts in the Western Cape in the Department of Correctional Services (DCS). All these employees were unsuccessful - they were not appointed to the positions for which they had applied. Subsequently, they launched an unfair labour practice dispute on the basis that the National Commissioner of the DCS' failure to appoint or promote them constituted an unfair labour practice based on discrimination. In essence, they contended that DCS' employment equity plan for the period 2010 to 2014 constituted a contravention of the Employment Equity Act 55 of 1998 (EEA).

The employees contended that the DCS acted unlawfully by making appointments, transfers and promotions in terms of the plan but in breach of the EEA, as the plan required a rigid application of quotas based on demographic representivity. In their view, the plan was both racist and sexist in its utilisation of rigid quotas, and took no account of regional demography.

It was accepted that the plan was the pivotal control: as a result of the plan, the application of the individual employees for promotion had been declined, where otherwise their applications might have been successful. Most of the employees had been recommended for employment by the relevant selection panel which had been constituted to conduct the necessary interviews for the advertised posts.

When the case was dealt with in the LC, the court noted that the applicants were classified as Black persons in terms of the EEA, but are members of the Coloured community in the Western Cape. Their case had been that they were unfairly discriminated against by virtue of the selection process followed by the DCS.

Rabkin-Naicker J in the LC said that section 42 of the EEA "guides the administrators of the EEA on how to gauge compliance with it". In terms of this section, both regional and national demography had to be taken into account. While national demographics provide a safeguard which recognises that there is an African majority in this country who were most severely impacted by apartheid, regional demography had also to be considered and, in this case, the regional demography of the Western Cape.

As the policy of the DCS had taken no cognisance of the regional demographics of the Western Cape, the selection and recruitment process amounted to discrimination which was not protected by s6(2) EEA nor by s9(2) of the Constitution. Accordingly, the LC found that the plan was unfair.

In an appeal against this judgment, the LAC in Solidarity and Others v Department of Correctional Services and Others (CA23/13) [2015] ZALAC 6 (10 April 2015) dismissed both the appeal and cross appeal, but made significant comments about quotas and regional demographics. The case made extensive reference to the Constitutional Court judgments in South African Police Service v Solidarity obo Barnard [2014] ZACC 23 and Minister of Finance v van Heerden 2004 (11) BCLR 1125 (CC), and canvasses matters beyond the issues of quotas. The LAC did however make this finding:

'The failure to take account of the impact of regional demographics on the nature and purpose of an Employment Equity plan, adversely reduces the contribution of restitution towards substantive equality and hence the attempt to achieve the .... goal of developing a non-racial and non-sexist society. This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA'.

Regional demographics are mainly an issue in the Western Cape, KwaZulu-Natal and the Northern Cape, so this judgment may not have national implications. But it does raise a flag against employment equity policies that limit the targets to achieving representation based on national demographics, where regional demographics are significantly different.

Accommodating an incapacitated employee

The employee was employed as a team leader in a motor vehicle assembly/ manufacturing department. As part of his duties, he worked as a "stand-in" in the place of an employee within his team who was absent. His department involved the actual building stages of vehicles and so required some degree of physical capability on the part of any worker in that department.

The employee sustained an injury on his left wrist or hand, an incident which occurred outside of the workplace, reportedly during rugby training. The injury affected his work performance as a team leader - he could no longer stand in for a team member who was absent. He also suffered from hypertension. On the recommendation of the employer's medical officer, the employee was moved to another work area within the same department, but where there was less employee absenteeism, meaning that the employee would not be required to perform "stand-in" duties as often. However, soon after being moved to the new work area, the employee complained that his right hand had also been affected and that he could no longer use it as well.

According to the employer all possible alternative placements were considered to accommodate the employee, but without success. Consequently an incapacity inquiry was held. He was found to be permanently incapacitated to perform his duties and dismissed on the ground of incapacity.

The employee was not satisfied with his dismissal, which he alleged was unfair. He referred an unfair dismissal dispute to the CCMA. The arbitrator held that the dismissal was both procedurally and substantively fair, especially as medical opinion held there was permanent incapacity, and the employer had acted reasonably in attempting to accommodate the employee.

On review at the Labour Court, the arbitration award was set aside because it was found that the dismissal was procedurally and substantively unfair. This was mainly because the employer had not pursued the possibility of the employee assuming driving responsibilities, a possibility raised during the arbitration but not pursued by the arbitrator. The LC directed the CCMA to convene a fresh arbitration before a new commissioner, to determine whether or not the employee had been fairly dismissed for incapacity. The employer appealed against this decision to the LAC.

At the LAC (General Motors (Pty) Limited v Numsa Obo Ruiters (PA 8/12) [2015] ZALAC 4 (22 January 2015)) the court did confirm this foundational principle: An employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. But an employer is obliged to consider all reasonable alternatives before dismissing. The LAC accepted the LC's approach that the employer had not seriously investigated a position of driver for the employee, and confirmed that a fresh arbitration should take place.

The first thing to note is the time sequence of this matter: the dismissal was in 2007, the CCMA arbitration in 2008, the LC decision in 2012, and the LAC decision in 2015. Eight years to resolve an alleged unfair dismissal dispute is simply unacceptable, especially as the fresh arbitration which must now take place triggers the potential of a second review application and a second appeal. The LAC did not give consideration to the procedural difficulty for both parties of finding the witnesses to the events of 2007. This case is a warning to both employers and employees that the system, designed to be time-efficient, can let you down badly.

The second thing to note is the good-faith attempt to accommodate the employee was seen as not going far enough. One interpretation of this case is that an employer must systematically consider every job situation in the enterprise to see if the employee can be accommodated. This might make little commercial sense unless there is a vacancy in an alternative position. But if there is possibility of an internal transfer, this must be considered.

Unfair discrimination: refusing maternity rights to a male employee

The employee was employed in the capacity of a Senior Specialist: Business Architecture. Whilst so employed, the employee entered into a civil union with his spouse in accordance with the provisions of the Civil Union Act 17 of 2006. In accordance with section 292 of the Children's Act 38 of 2005 the employee and his spouse entered into a surrogacy agreement with a surrogate mother. The surrogacy agreement was confirmed as an order of court.

In anticipation of the birth of the child the employee applied to his employer for paid maternity leave from the date of confinement for a period of four months. The employer refused on the grounds that its policies and BCEA only covered female employees and were silent on the issue of leave for surrogate parents. The employer initially offered the employee family responsibility leave or special unpaid leave. Subsequently the employee granted the employee two months paid adoption leave and two months unpaid leave.

The employee, aggrieved by this decision, referred a dispute regarding unfair discrimination to the CCMA for conciliation. This was unsuccessful and application was made to the Labour Court to have the employer's refusal to grant him paid maternity leave to constitute unfair discrimination on the grounds of gender, sex, family responsibility and sexual orientation as provided for in s 61 of the Employment Equity Act 55 of 1998. The employee sought an order for himself and "other similarly placed applicants" for the court to direct the employer to refrain from so discriminating and accord due recognition of their rights. In addition the employee sought damages and payment for the unpaid leave he was required to take to care for his child. The Labour Court in M I A v State Information Technology Agency (Pty) Ltd (D 312/2012) [2015] ZALCD 20 (26 March 2015) held that the employee had been unfairly discriminated against and made an appropriate order to remedy this.

The principle established by this case is this: A policy which denies male employees maternity leave discriminates unfairly against male employees who have either adopted a child or have entered into a surrogacy agreement to become parents of a child. In applying its policy regarding maternity leave, employers must give recognition of the status of parties to a civil union and recognise the rights of commissioning parents in a surrogacy agreement. The implications of this judgment as well as a survey of other applicable legislation, is covered in the article below.


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Bruce Robertson
April 2015
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