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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 'the liability of employers for sexual harassment: Section 60 of the EEA'. We also discuss three new cases: The first case looks at an allegation of discrimination on an 'arbitrary ground'. The second case looks at whether an insensitive comment about disability constitutes disability discrimination. In the third case the court was asked to declare that 'employees' in worker co-operatives should be regarded as employees under the LRA.

This public newsletter is a free edited version of the subscriber newsletter.


Discrimination on an arbitrary ground

A quick recap: Section 6 of the EEA has 19 listed grounds on which an employer cannot discriminate (eg age, race, gender etc). It's not a closed list because section 6 says 'on one or more grounds, including..' - which means that there are other grounds on which an employer may not discriminate similar to the 19 listed grounds. Then in 2013 section 6 was amended to add 'or on any other arbitrary grounds' to what was already not a closed list. This now means there are 3 categories applicants might use in their unfair discrimination claims:

  1. 19 specific listed grounds,
  2. similar or analogous grounds and
  3. any other arbitrary grounds.

The significance of these categories lies in section 11. Section 11(1) provides that if the discrimination is alleged to be on a listed ground, the employer must prove, on a balance of probabilities, that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair, or is otherwise justifiable. But section 11(2) provides that if unfair discrimination is alleged on an arbitrary ground, the complainant (ie the employee) must prove, on a balance of probabilities, that (a) the conduct complained of is not rational; (b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair. Although it is not specifically stated, we think the second category above, namely similar or analogous grounds to the listed grounds, would fall under section 11(1), with the onus of proof lying with the employer in the case of discrimination based on trade union membership, for example.

There has been some debate about the meaning to be given to 'arbitrary grounds'. We believe it refers to the situation where an employee discovers s/he is being treated differently to others for no good reason, even if the employee is not aware of any alleged reason for the discrimination. It is however important to note that some of the cases do not follow this approach, and it has been held that mere arbitrariness on the part of the employer is not enough - it is only when the employer's arbitrary actions are linked to an unacceptable ground, that it becomes discrimination in terms of the Act. See for example Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others (C687/15) [2016] ZALCCT 14 (19 April 2016).

Here is a case where the employee used the 'arbitrary grounds' category: The employee was employed as a barman and lived in accommodation at the employer's hotel. The employee was told to leave work as the room he shared with his colleagues was to be painted and renovated. The employee was told that he was untidy, had a bad body odour, poor personal hygiene and that his clothes were 'stinking'. He referred a dispute to the CCMA, saying that he had been the victim of unfair discrimination in terms of the EEA.

The employer led evidence at the arbitration that the employee was cautioned many times about his attire, his hygiene and his cleanliness. Customers complained that his body odour was such that they did not want to be served by him. The room that the employee shared with his colleagues was filthy and the employer had found bits of food under the bed. Smelly clothes lay heaped on the floor and the room had a bad odour. The employer conceded that it attributed this odour to the employee but could not say for certain that he left the food on the floor and not one of his colleagues. The employee was the only one given a letter advising him to stay at home pending the renovation.

The commissioner in Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel (2017) 38 ILJ 702 (CCMA) noted that the employee brought his claim for unfair discrimination on an arbitrary ground and thus bore the burden of proof in terms of s 11(2) of the EEA. The commissioner accepted the employee's version that none of the other employees who shared the room with him, were treated in the same manner. They were not issued with letters suggesting that they were unclean or that they practiced poor personal hygiene. The commissioner concluded that it had not been proved that the employee practised poor personal hygiene or that management could justifiably arrive at such a conclusion.

The commissioner found that judging the employee adversely on the basis of perspiration and body odour is discriminatory and, as none of the others were subjected to the same treatment, such discrimination was unfair. The commissioner found the employer liable for the discrimination on the basis of s60 of the EEA (discussed in the article in this newsletter), and awarded the employee compensation of R15 000. The lesson from this case is that unless it can be proven as a breach of an employee's duties, an allegation that an employee has bad body odour and poor personal hygiene impairs dignity and demeans his/her worth as a human being. It may constitute unfair discrimination on an arbitrary ground. Even where the allegation is proven, the employer must raise the issues in a way that is not demeaning.

Disability Discrimination

A manager referred to a one-eyed employee on a WhatsApp message as 'one eye'. The employee took offence to being so described, instead of being referred to by name. He showed the message to other workers. The employee then lodged an internal grievance against the manager. The employer convened a grievance meeting at which the manager apologised to the employee and admitted that he was wrong in doing what he did. The employee refused to accept the manager's apology. The manager was issued with a written warning for his conduct of making improper remarks.

The employee referred a dispute of unfair discrimination to the CCMA. The commissioner in Ngwabe and Imvula Quality Protection (Pty) Ltd (2017) 38 ILJ 724 (CCMA) rejected the employee's claim that he had been subjected to unfair discrimination relating to his disability by being referred to as 'one eye'. The commissioner found that even where insensitive and inappropriate conduct by a manager is subjectively felt to be a form of discrimination, by convening a grievance hearing and issuing the manager with a written warning, the employer will have taken the necessary steps to eliminate the conduct complained of and can therefore not be held liable for it.

This case can be contrasted with Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC)(23 September 2016) discussed in Worklaw's January 2017 Newsflash. In that case the employee was employed as a general manager; he was a valued, well respected senior employee with very good working relationships with other employees, and reported directly to the CEO. He attempted suicide for unknown reasons by shooting himself in the mouth. This left him severely injured and his face disfigured.

The employer, after having supported the employee through his recovery, felt that he was 'not facially acceptable', and as one could only understand 70 to 80% of what he was saying, it meant he was not capable of performing his duties in full and his employment was terminated.

The LC found that the employer had done nothing to comply with its obligation under the Disability Code to explore how the employee's disability could be accommodated. Such an exercise was essential for any discrimination against the applicant to be considered fair. The Court confirmed that "disability is not synonymous with incapacity." An employee is incapacitated if the employer cannot accommodate him /her or if refusing an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair, but dismissing an employee who is disabled but not incapacitated is unfair.

The Court showed its strong displeasure at the employer's conduct. The LC awarded the employee damages equivalent to 24 months' salary, which is comparable to the maximum compensation award for an automatic unfair dismissal in terms of Section 194(3) of the LRA. In addition, the LC awarded compensation of 6 months' salary for the hurt and humiliation the employee suffered. All this effectively meant the employee was awarded over R1,5 million in damages and compensation, plus the costs of the court proceedings.

While these two cases are dissimilar, they do show that employer's responses to disability can easily lead to discrimination disputes.

Is a member of a co-operative an employee under the LRA?

A 'co-operative' means an autonomous association of persons united voluntarily to meet their common economic and social needs and aspirations through a jointly owned and democratically controlled enterprise organised and operated on co-operative principles. In South Africa co-ops are governed by the Co-Operatives Act 14 of 2005 (COA).

Because a co-op is in theory jointly owned, the members themselves are not employees. The co-op could itself employ a worker, but the appeal of co-ops is that the employment relationship can be avoided in the case of the co-op's members. But there is a problem. Unscrupulous employers set up sham co-operatives to circumvent labour law, pretending that it is a worker co-op. Bargaining Councils have for many years waged war on fake co-ops, and recently one bargaining council tried a more dramatic strategy.

The National Bargaining Council for the Clothing Manufacturing Industry (KZN) sought a declaratory order against six businesses which claimed to be worker co-operatives, registered under s 7 of the COA. The order sought was that the provisions of the COA do not prevail over the provisions of the LRA and accordingly that members of worker co-operatives who otherwise fall within the definition of an "employee" in terms of section 213 of the LRA are employees for the purposes of the LRA, and the co-operatives and such members are accordingly bound by the provisions of the LRA.

The Labour Court in National Bargaining Council for the Clothing Manufacturing Industry (KZN) v Glamour Fashions Worker Primary and Others (D20/16) [2017] ZALCD 8 (15 February 2017) found that it was unable to issue a blanket declaratory order stipulating that all workers' co-operatives are subject to the LRA. The court said that the LRA applies only to 'employees', as defined, but it is not self-evident that all members of workers' co-operatives are covered by the LRA's definition of 'employee'.

Any declaratory order could, logically, only cover those co-operative members who work for another person and who receive any remuneration. What this means is that any declaration of the LRA's precedence over the COA could only apply to those members of sham co-operatives who are in fact employees as defined in the LRA in the first place. The court said there is no point granting such a declaratory order because the issues are essentially fact-dependent and their determination in the abstract would have little, if any, precedential value and thus no practical effect.

What this means is that whether members of worker co-operatives fall within the definition of an "employee" set out in section 213 of the LRA must depend on a case-by-case analysis rather than a rule covering all members of all cooperatives. This means a case-by-case battle by bargaining councils against sham co-ops is the only way of policing potential abuse.


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Bruce Robertson
April 2017
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