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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains a case study on racism and managing diversity. We also look at two new cases: the first dealing with whether an employer is guilty of unfair discrimination if it distinguished between the different groups within the designated groups listed in the EEA. The second is a technical one dealing with public holidays: when a public holiday falls on a Sunday, is the real public holiday on the Monday?
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Can an employer distinguish between the designated groups?
When it comes to appointments and promotions, can an employer distinguish between, for example, an African man and a Coloured man? Does the employer act discriminatorily if it does so?
In Solidarity obo Christiaans and Eskom Holdings Ltd (2006) 27 ILJ 1291 (Arb) only the applicant, a Coloured male, and an African male were short-listed and interviewed for an advertised position. Both met the minimum requirements but the applicant was awarded the higher points. He was recommended for appointment by the selection panel but senior management awarded the position to the African male. The applicant referred a dispute to private arbitration, claiming unfair discrimination and/or an unfair labour practice relating to promotion. He argued he was part of the EEA’s designated group and was part of a population group which had been previously disadvantaged. The company’s evidence was that, although both Coloureds and Africans were under-represented, Africans constituted only 3,3% in that grade.
The arbitrator’s decision was based on an acceptance of the company’s equity plan, to reflect the demographic profile of the country, and that there was a rational connection to a legitimate purpose, the advancement of employment equity. The arbitrator found there had been no discrimination, nor had there been an unfair labour practice. The lesson to be drawn from this case is that as long as an employer’s equity plan justifies it, it will not be discrimination nor an unfair labour practice for the employer to distinguish between the different groups within the designated groups listed in the EEA.
When is a public holiday a public holiday?
In the recent case of Randfontein Estates Ltd v NUM (2006) 27 ILJ 1200 (LC) a dispute arose concerning the interpretation of s 2(1) of the Public Holidays Act 36 of 1994, which provides: ‘The days mentioned in Schedule 1 shall be public holidays, and whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday’.
The employer argued that s 2(1) should be interpreted to mean that, where a public holiday falls on a Sunday, the following Monday shall instead be a public holiday. The trade union argued that it should be interpreted to mean that, where a public holiday falls on a Sunday, the following Monday should also be a public holiday.
The court held that the section was not ambiguous. What the legislature intended was to declare the Monday as a public holiday if a public holiday fell on a Sunday. A public holiday that falls on a Sunday does not cease to be a public holiday. All that happens is that the next Monday automatically becomes a public holiday. While this is not what an employer may want to hear when considering overtime rates, it is logical that if Christmas Day falls on a Sunday, the Monday does not become Christmas Day!
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