The Employment Equity Act amendments tested in practice

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1 A survey of some recent cases Volume 25 No. 2 September 2015 The Employment Equity Act amendments tested in practice Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box Tokai 7966 Tel: ISSN X cll@workplace.co.za by P.A.K. Le Roux I n an earlier review (CLL Vol 24 No.1) we discussed the amendments to the Employment Equity Act, 55 of 1998 (EEA) that had just come into force. We highlighted some of the areas of uncertainty and importance generated by the amendments. One of the most important amendments was that giving the Commission for Conciliation, Mediation and Arbitration (CCMA) jurisdiction to deal with discrimination disputes where the employee concerned earned less than the amount determined by the Minister of Labour in terms of section 6(3) of the Basic Conditions of Employment Act, 75 of It was predicted that this could lead to the CCMA having to deal with a large number of discrimination cases, simply because most aggrieved employees would no longer have to refer discrimination disputes to the Labour Court and to incur the costs (and suffer the delays) associated with litigation in a court. Whilst anecdotal evidence suggests that the CCMA has had to deal with an increasing number of these disputes, this is not yet reflected in the journals reporting arbitration awards.. However, there are a number of unreported awards that can be found. This contribution deals with some of the reported awards and some of the unreported awards that have been found. This is not a representative review of CCMA awards but simply a selection of some early decisions which seem of interest. We also deal with a recent Constitutional Court decision dealing with discrimination. But first, it is advisable to set out the relevant provisions of the EEA as amended. An overview of the EEA provisions The basic provision dealing with the prohibition of unfair discrimination is section 6(1). Prior to the 2014 amendments section 6(1) read as follows Page 13

2 (1)No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, or birth. The formulation of the section made it clear that although the list of grounds specifically mention in the section was extensive, it was not a closed list. Other grounds of discrimination outside this list could exist; these were referred to as unlisted or analogous grounds. The test for deciding whether differentiation on such a ground constituted discrimination was whether the alleged discrimination had the potential to impair the human dignity of human beings or to affect them in a comparably serious manner. (See in this regard, for example IMATU & another v City Council of Cape Town [2005] 11 BLLR 1084 (LC) which derived this test from the decision of the Constitutional Court in Harksen v Lane NO & others (1998) (1) SA 300 (CC). The 2014 amendments then amended this section to insert the words any other arbitrary ground at the end of the section. This has led to a debate as to what the effect of this amendment is meant to be. Does this mean that we now have three types of ground on which differentiation becomes discrimination, namely listed grounds, unlisted grounds and arbitrary grounds? If so, what constitutes an arbitrary ground? For contrasting views see Darcy du Toit Protection against Unfair Discrimination: Cleaning up the Act? (2014) 35 ILJ 2623 where he argues that this means that decisions and policies of employers that differentiate between employees can be challenged on the basis of irrationality. For a more restrictive approach, where it is argued that a distinction should be drawn between arbitrariness and an arbitrary ground and where it is argued that the test for an arbitrary ground is the same as that for an unlisted ground, see the as yet unpublished paper presented by P le Roux and C Garbers at the 21st Annual Conference of the International Society for Labour and Social Security Law entitled Employment Equity into the Future. Although section 6(1) was wide enough to deal with cases where employees argued that they were unfairly discriminated against because they were accorded less favourable terms and conditions of employment (socalled equal pay claims) the legislature has found it necessary, primarily at the behest of the International Labour Organisation, to introduce a specific equal pay provision. Section 6(4) reads as follows - A difference in terms and conditions of employment between employees of the same employer performing the same work or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.from the limited survey of decisions perused it seems that the CCMA has had to consider a fair number of this type of dispute. Some examples will be provided below. Section 6(2) sets out certain defences to a claim of unfair discrimination. It states that it is not unfair discrimination to take affirmative action measures consistent with the purposes of the EEA or to distinguish, exclude or prefer a person on the basis of an inherent requirement of a job. This led to a further debate as to whether these were the only grounds on which discrimination could be Page 14

3 Contemporary Labour Law Vol. 25 No 2 September 2015 justified or was there a general fairness defence which permitted employers to justify discrimination on other grounds? A survey of the decisions prior to the amendments indicate that most decisions opted for a general fairness defence. This debate seems to have been resolved by the provisions of section 10 of the EEA dealing with the onus of proof as well as the Regulations published in terms of the EEA which seem to envisage grounds for justification wider than the two mentioned in section 6(2). Mbana v Shepstone & Wylie (CCT85/14) [2015] ZACC 11; 2015 (6) BCLR 693 (CC) (7 May 2015) The employer in this matter awarded a bursary to a black female, a Ms Mbana, to study for her LLB degree. In terms of the agreement entered into between the parties the employer also undertook to employ Mbana after the completion of her LLB degree. She commenced her studies and it was envisaged that she would complete her degree at the end of In July 2008 Mbana informed the employer that she would not complete her degree at the end of the year because she still needed to complete one module of the degree. She would have to enrol in 2009 and complete her degree in June She enquired whether she could nevertheless take up employment in January 2009? She was told that this was not possible and that her employment could only commence in January 2010 at the employer s Durban office. In March 2009 Mbana again enquired whether she could start working in July 2009, once she had completed her degree in June She initially indicated that she was prepared to work in any of the employer s offices but later retracted this indication she wanted to work in the Durban office. The employer again stated that she would have to commence employment in January Mbana duly commenced employment as a candidate attorney in January 2010 and things appear to have proceeded smoothly until January 2011 when the employer appointed two candidate attorneys. One was a black man, a Mr Mchunu; the other was a white woman, a Ms Tooley. Neither Mchunu nor Tooley had completed their LLB degrees. Mbana lodged a complaint with the employer and meetings were held where her grievance was discussed. The matter remained unresolved. In May 2011 Mbana referred a dispute to the CCMA; she alleged that she had been discriminated against on the grounds of race and social origin, alternatively an arbitrary ground. The dispute remained unresolved and she then referred the dispute to the Labour Court. The basis for her case was that she had not been treated in the same way as Tooley and Mchunu. She later amended her statement of case to refer to a third employee of the employer, a Ms van Rooyen, who had been appointed at the Richards Bay office despite not having completed her LLB degree. The Labour Court found that the employer s insistence that Ms Mbana only start working once she had completed her degree and not requiring this of the other three employees did not constitute evidence of unfair discrimination on the grounds of race, social origin or an arbitrary ground. Even if it did constitute unfair discrimination, the discrimination was both fair and justified. Leave to appeal was refused by the Labour Court, the Labour Appeal Court and the Supreme Court of Appeal. Mbana then ap- Page 15

4 proached the Constitutional Court. In considering whether leave to appeal should be granted the Constitutional Court first considered whether the issue raised a constitutional issue. It found that it did because a claim of discrimination concerned the constitutional right to equality. It then went on to consider whether Mbana s claim had any prospects of success. Much of the decision deals with the allegation that the decision of the Judge in the Labour Court had been actuated by bias or, alternatively, that a reasonable apprehension of bias existed. This aspect of the decision need not be dealt with here. Of importance is the question whether Mbana s claim of unfair discrimination had any reasonable prospects of success. The Constitutional Court found that there were no such prospects and refused leave to appeal. Its findings can be summarised as follows The Court found that both Tooley and Mchunu had been employed in terms of the employer s graduate programme; i.e. a programme in terms of which newly graduated persons were recruited in January of each year with the expectation that they would take up employment in the January of the next year, provided that they obtained their degrees prior to taking up employment. Mbana was employed in terms of the employer s bursary programme which provided for the employer to pay the tuition fees of a student and guaranteed him or her employment once he or she graduated. When it became known, in July 2008, that Mbana would not graduate at the end of the year, the employer had time to recruit replacement staff. In 2011 the employer had offered employment as candidate attorneys in the litigation department to five persons. One of these had not taken up the offer. When the employer found out, in February 2011, that neither Tooley nor Mchunu had graduated it was too late to hire replacement staff for the year. If Mchunu and Tooley had been dismissed the litigation department would not have had sufficient staff. It was therefore agreed with them that they would remain in employment and that they would have to complete their degrees by June 2011; if not they would no longer be employed as candidate attorneys. Tooley obtained her degree in time and continued her employment. Mchunu, on the other hand, left the employer s employment because he did not complete his degree in time. The business needs of the respondent dictated that these candidate attorneys be retained under these circumstances. The Labour Court had found that these reasons constituted exceptional circumstances justifying the employer s deviation from its policy of employing candidate attorneys and was not discriminatory. The Constitutional Court found that it was not in a position to gainsay that finding. As far as van Rooyen was concerned, she had been employed for five years as a secretary before being employed as a candidate attorney. She had been studying for her LLB degree on a part-time basis when she agreed to move to a branch office in Richards Bay. She had Page 16

5 Contemporary Labour Law Vol. 25. No. 2 September 2015 also agreed that she would also perform administrative tasks whilst at that office. She had not been part of the employer s graduate or bursary programmes. There was no evidence of any vacancy that Mbana could have filled at a branch office. Although she had indicated that she would work in Richards Bay she had swiftly withdrawn this offer. Her situation was therefore different from that of van Rooyen. The Court was also influenced by the fact that Mchunu had been employed despite him not having obtained his degree. Mbana s argument that racial discrimination had taken place therefore lost traction. Mbana had also failed to show that the discrimination was based on an arbitrary ground. She had not shown that the employer s recruitment policy was irrational, that it amounted to discrimination, or that it was unfair. The employer had reasonably justified its policy and its application of the policy to her circumstances. In addition the employer had - [36... sufficiently justified its deviation from the recruitment policy in the instances of Ms Tooley, Mr Mchunu and Ms van Rooyen. A puzzling aspect of the Constitutional Court s decision is that, although the alleged acts of discrimination took place in 2009, long before the latest amendments came into force, the Constitutional Court appears to have based its decision on the EEA as amended in No reasons for this retrospective application of the amendments is provided, but this does make the decision of interest, quite apart from the facts discussed above. The first point is that the Court accepted that the approach to discrimination cases formulated by it in the seminal decision in Harksen v Lane NO and others 1997 (11) BCLR 1489 (CC) and regularly applied by our labour courts when interpreting and applying the EEA, continues to apply when interpreting the EEA after the amendments. The second is that although the Court seems to dismiss Mbana s case on the basis that it had not been established that there had been discrimination on the grounds of race or social origin, and that there had also been no discrimination on an arbitrary ground it accepted that the fairness defences set out in section 6(2) of the EEA are not the only defences open to an employer. There is a general fairness defence. In this case the business needs of the employer justified the differentiation. However, the Court did issue a warning in this regard in the following terms [38] Despite this conclusion, it must be stressed that an employer s business and operational needs will not simply be accepted on the employer s own say-so. It must be shown, objectively, that there are genuine and legitimate business and operational needs that justify the differential treatment of employees. Finally, the Court did not deem it necessary to consider what the test is for determining what constitutes an arbitrary ground. It dismissed Mbana s allegation in this regard on the basis that she had not discharged the onus of proof that the amended section 11 of the EEA placed on her. This issue is dealt with below. Page 17

6 Arbitrary grounds UNADEWO v Cape Pine (Pty) Ltd t/a MTO Forestry (Unreported WEGE /7/2015) In this case the arbitrator had to deal with an equal pay claim as envisaged in section 6(4) of the EEA. It also had to deal with the question of what is meant by an arbitrary ground. The Union for National Democratic Unity Workers referred a dispute to the CCMA on behalf of its members in which they argued that the fact that their employer was paying them less than other workers doing the same work, or substantially the same work, constituted unfair discrimination on an arbitrary ground. The commissioner rejected this argument on two main grounds. The first was that there was no evidence to show that there had been discrimination. In coming to this conclusion the commissioner relied on the decision of the Labour Court in Ntai v SA Breweries Ltd (2001) 22 ILJ 472 (LC) and found that it was for the applicant to show that discrimination had taken place on an arbitrary ground a mere arbitrary decision or action was not enough. Furthermore to qualify as an arbitrary ground there had to be a ground on which it was alleged that discrimination took place. In addition the applicant had to show that the ground had the effect of affecting the dignity of the employees concerned or that it affected them in a comparably serious manner. This is evident from the following excerpt - [32] The Applicant has failed to identify the actual arbitrary ground on which its claim of unfair discrimination is based. The Applicant was advised that this is an essential part of the case against the Respondent. To illustrate this I have considered the principles in the matter of Ntai v SA Breweries Ltd (2001) 22 ILJ 214 (LC). In this matter the applicants alleged arbitrary discrimination but failed to identify the specific listed ground upon which they alleged that they have been discriminated against. As a result, the court held that they had failed to cross the first hurdle in that it was impossible for the court to determine whether the ground relied upon was based on attributes and characteristics which have the potential to impair the fundamental human dignity of the applicants as human beings. The Court concluded that the mere arbitrary actions of an employer could not, on their own, amount to discrimination. The second was that even if there had been discrimination this was not unfair because the employer could justify the discrimination on the ground that the remuneration strategy that it had implemented, after consulting remuneration specialists and a majority union, permitted longer service employees to be paid more. The evidence showed that this was indeed the basis for the difference in salaries. Regulation 7 of the Regulations published in terms of the EEA permitted differentiation on this ground. Also of interest here is the issue of the CCMA s jurisdiction to consider the case. Section 10 of the EEA provides that unfair discrimination cases should be heard by the Labour Court unless one of three exceptions apply, in which case the CCMA can arbitrate the dispute. These are listed in subsections 10 (6)(aA) and (b), which read as follows - (aa) an employee may refer the dispute to the CCMA for arbitration if- (i) the employee alleges unfair discrimination on the grounds of sexual harassment; or Page 18

7 (ii) in any other case, that employee earns less than the amount stated in the determination made by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act; or (b) any party to the dispute may refer it to the CCMA for arbitration if all the parties to the dispute consent to arbitration of the dispute. (emphasis supplied) The first two exceptions involve an individual employee referring a dispute to the CCMA. In this case a union acting on behalf of a number of individual employees had referred the dispute. There is no indication that the parties consented to the CCMA considering the dispute (i.e the third exception). Perhaps the employer did not object to the union referring the dispute to the CCMA and that this was regarded as constituting tacit consent? In any event, this provision could be easily circumvented, at least in the case of a relatively small number of employees, by each employee referring a separate dispute and then applying for consolidation. Buthelezi v Quantro Cleaning Services (Unreported KNDB ) Although this was a default award the issue of what constituted an arbitrary ground is also considered in some detail in this decision. The employee in this matter had been employed as a cleaner working for a contract cleaning company. She was dismissed and successfully claimed that she had been unfairly dismissed. She also lodged an unfair discrimination dispute against her employer claiming compensation from the employer. The basis for the allegation was that her supervisor insulted her by telling her that she stank and that she had a personal hygiene problem. She alleged that this constituted discrimination on an arbitrary ground. After pointing out that the Courts had not yet dealt with this question subsequent to the amendment to the EEA, the commissioner went on to conduct a comprehensive analysis of the issue. It referred to various decisions, including the decision of the Labour Appeal Court (LAC) in New Way Motor & Diesel Engineering Ltd v Marsland [2009] 12 BLLR (LAC). In this decision the LAC dealt with section 187(1)(f) of the Labour Relations Act, 66 of 1995 (LRA) which provides that a dismissal is automatically unfair if the reason for the dismissal is unfair discrimination on any arbitrary ground, including a list of some 20 stated grounds. In deciding whether the employee had been discriminated against on an arbitrary ground, the Court adopted the same test (described above) as that applied in determining whether an unlisted ground exists i.e. did the differentiation impair the dignity of the employee or affect him in a comparably serious manner. The commissioner came to the conclusion that it is probable that the inclusion of the concept of an arbitrary ground in section 6(1) does not widen the original scope of section 6, and that the same test will be used as that applied in determining whether an unlisted ground exists. The commissioner came to the conclusion that the employee had been unfairly discriminated against on an arbitrary ground. BS Tarpeh v Full Circle Contact Centre Services t/a Capita SA (Pty) Ltd (Unreported 21 April 2015 WECT 2508/2015) This decision is an interesting one in that it deals with the case of a Liberian national who was refused employment; he alleged that the reason for this refusal was that he was an asylum seeker. The commissioner embarked on a detailed analysis of whether Page 19

8 the status of being an asylum seeker constituted an arbitrary ground and came to the emphatic conclusion that it did. She did so on grounds similar to those referred to in the two abovementioned decisions and she appears to have accepted that an arbitrary ground is similar to an unlisted ground. This following excerpt from the award is instructive Having the status of asylum seeker has in common with the listed grounds, that it has, and still is, used (or misused) in the past (both in South Africa and elsewhere) to categorize, marginalize and oppress persons who have had, or who have been associated with these attributes or characteristics as held in the Harksen case. The mere fact of being an asylum seeker frequently means that, despite having usually been through extreme difficulties, suffering and trauma prior to arriving in South Arica, the individual is mistrusted, ostracized and not afforded an opportunity to be fully integrated into South African society. The numbers of xenophobic acts perpetrated of late against foreigners, including asylum seekers among them, bears testimony to the inability of such person to be fully integrated into our society. Society frequently shuns or abuses asylum seekers, especially in the area of employment, and frequently, without more and for the mere fact of their situation as foreigners seeking asylum in South Africa. Just as is the case with the listed grounds, being an asylum seeker constitutes a characteristic attached to such a foreigner. It is an immutable characteristic that he/she cannot simply shake off or change or seek to ignore. It remains with an individual for the duration of his wait until he can either return to his country of origin or apply for South African citizenship. It impacts greatly on the persons involved and in some cases even more significantly and pervasively than many of the listed grounds to which it clearly is analogous. An asylum seeker therefore, despite the trauma of having had to leave his country of origin, often accompanied by extreme suffering and hardship, has an additional burden to bear which frequently results in loss of opportunity on every front in life and for a significant period. The commissioner then analysed the conflicting versions provided by the parties during evidence and came to the conclusion that the employer had in fact discriminated on an arbitrary ground and could offer no justification for this. Pay grades National Education, Health & Allied Workers Union obo members v South African Revenue Services (SARS) [2015] 9 BALR 966 (CCMA) In this case the National Education, Health and Allied Workers Union (NEHAWU) referred an alleged unfair discrimination dispute to the CCMA on behalf of some of its members who worked in a call centre operated by the employer. Employees in the call centre assisted taxpayers with queries and information related to tax matters. The post levels of employees employed in call centres are post levels 3B, 4A entry, 4A mid, 4B entry and 4 B mid. When employees commence working in a call centre, they are not required to have any prior knowledge or experience in tax laws or procedures. They are placed on post level 3B and are required to undergo a three month training course. After completing the course they commence working in a call centre and placed on a telephone queue for income tax, i.e. they will deal with calls from taxpay- Page 20

9 ers dealing with income tax. Employees at post level 3B are then given the opportunity to write a test to assess their capabilities in income tax matters. If they pass this test with a mark of at least 60 per cent, and if they pass their normal quality assessments during the course of the year with a minimum mark of 60 percent, they will then be promoted to post level 4A entry at a higher salary. However, they will still only deal with income tax queries. Employees at this level are then given an opportunity to study a further tax type such as VAT or PAYE. If they pass the test and pass their annual assessment they will be promoted to post level 4A mid. Further progression through the pay levels will depend on an employee studying for, and becoming proficient in, other tax types. This system is known as the Capability Framework. It was introduced with the agreement of the recognised unions. The employees in this matter were employed in post level 3B. They complained that they were not being paid the same as employees employed at post level 4A entry. Their argument was that they were performing the same work as those employed at post level 4A entry i.e handling income tax queries. The reason why they had not been promoted to post level 4A entry was because they had not written the requisite test. They had refused to write the test because they were of the view that it did not accurately measure performance and proficiency. They argued that their annual quality assessments assessed them at 80 percent or, in some cases at 90 per cent, and that this was the only measure that should be applied in determining whether they should be placed in post level 4A entry. The commissioner rejected this argument. The fact that the employees in post level 3B did not receive the same salaries as those in post level 4A entry did not mean that they had been discriminated against. The fact that they did not receive the same salary was because they refused to write the test in order to be promoted to post level 4A entry. The differentiation was due to an omission on their part. They could not give a satisfactory reason why they did not want to write the test and there was no evidence to indicate why the test should be dispensed with. There had therefore been no unfair discrimination. The Commissioner argued that When an employee starts on post level 3B he or she knows nothing about income tax and cannot be compared with an employee on post level 4A entry. However, as time progresses an employee working at post level 3B may acquire the same knowledge, experience and competence as somebody working at post level 4A entry, despite refusing to write the exam. In this case the value of the work performed by the two employees is the same. But the question was whether the differentiation in payment constituted unfair discrimination? This was not the case because the only reason why the applicant employees did not receive the same salary was because they refused to write the test. There was no good reason for this refusal. This is another case involving a group of employees where the CCMA accepted jurisdiction to arbitrate the dispute. Of more interest, however, is the fact that the commissioner did not consider on what ground discrimination took place. After coming to the conclusion that in certain circumstances post level 3B Page 21

10 and 4A entry workers did the same job, he simply went on to determine whether the differentiation was unfair. He should, it is submitted, first have decided whether there was in fact discrimination on a ground referred to in section 6(1). It is unclear how the ground he referred to, i.e. the refusal to write a test, constituted an unlisted or arbitrary ground. In addition, the finding that the employees in post level 3B could be seen as doing the same job as employees in post level 4A entry when they acquired greater skills and experience seems flawed. It is submitted that the test for deciding whether they performed the same work is what functions and tasks they actually performed. It appears that they performed the same tasks and functions from the beginning the efficiency or the skill with which they performed these tasks or functions seems irrelevant in determining whether they performed the same job; although these factors could have been relevant in justifying (or not justifying) a wage disparity. Maphumalo & another v Ilembe District Municipality (Unreported KNDB March 2015) This award dealt with the complaint of two employees, a Mr Maphumulo and a Mr Gumede, who were employed as procurement assistants at grade 10 of the employer s salary scale. They were aggrieved that two other employees, a Mr Myeni and a Mr Myeza, who were also employed as procurement assistants, were appointed at grade 8 and were paid at a higher rate. They argued that they were being discriminated against on an arbitrary ground. The employer accepted that the four employees all did the same job but argued that there was no unfairness. Its defence was that when the applicants applied for their positions they were advertised as a grade 10 positions and that it was not open for them to complain of the difference in the post grades and the difference in pay that this resulted in. In contrast Myeni and Myeza had five years longer service with the employer and their posts had been graded at grade 8 when they were appointed. In addition, a job grading exercise had been conducted in 2014, and the result of the exercise was that the posts of all four employees had been graded at lower than grade 10. However, in order not to prejudice the employees, they were permitted to retain their salaries. Finally, the employer had the prerogative to choose at which level to advertise the posts. Not surprisingly, the commissioner made short thrift of these defences. She found that there had been unfair discrimination on an arbitrary ground. Of interest is the finding that discrimination in pay had taken place on an arbitrary ground. There is no discussion of what constitutes an arbitrary ground or any discussion of the issues similar to those in the decisions referred to above. The commissioner seems to have accepted that any differentiation that cannot be justified constitutes an arbitrary ground. Also of interest is the commissioner s approach to the fact that the differentiation in pay had arisen in December 2013 when the applicants were appointed. The commissioner posed the question whether she had jurisdiction to hear the case on the basis that the disputes should have been referred earlier and could not be dealt with under the amended EEA. The commissioner accepted that the amendments did not have retrospective effect, but argued that the conduct of the employer was continual and repetitive it was a continu- Page 22

11 ing and recurring practice which continued after the amendments came into force. The result was that she had jurisdiction to deal with the dispute. However, when crafting the remedy she took this fact into account and only ordered the employer to place the employees on grade 8 as from 1 August the date that the amendments came into force. Pregnancy There are a number of Labour Court and Labour Appeal Court decisions in which dismissals motivated by the pregnancy of an employee have been found to be unfair. The recent amendments appear to have prompted pregnant employees to challenge the fairness of other employer actions in the context of their pregnancy. Tshili v Luvhomba Group (Pty) Ltd (Unreported GATW May 2015) The employee in this case had been employed as an executive assistant to the employer s managing director. She alleged that when she fell pregnant she was subjected to a number of discriminatory actions. After analysing the evidence the commissioner came to the conclusion that certain of the actions complained of had not been due to her pregnancy. However, two actions of the managing director did constitute discrimination. The first was that he had indicated to her that her pregnancy was becoming a problem and it was becoming a disability and a liability. The second was that the employee had been transferred to another workplace. Jonase and others v Impala Platinum (unreported NWRB /3/2015) The two employees in this case worked underground in the employer s mine. When they became pregnant they were not permitted to continue to work underground because of the risk to their health and that of their unborn child. In terms of the employer s policies these employees could be given alternative work above ground if suitable work was available. They would work in these positions until they became entitled to paid pregnancy leave in terms of the employer s policies. However, this employment was not guaranteed. If suitable work was unavailable they would be granted 4 months paid leave and thereafter unpaid leave for a period of three months. if they were not breast feeding their baby. and six months unpaid leave if they were breast feeding their baby. The applicant employees were not provided with alternative employment above ground and they claimed that the employer s failure to do so constituted unfair discrimination. The employer s defense was that there was no work available for them. The commissioner found that there had indeed been discrimination on the grounds of pregnancy. In coming to this decision the commissioner had the following to say - [22] It is clear from the evidence provided that the applicants were indeed discriminated against. The truth of the matter is that the duty is on the employer to provide employees with a safe working environment, however, that does not mean that employees should be prejudiced or be disadvantaged in the process. I agree with the employer that it is risky to allow pregnant employees to work underground but I disagree with the fact that an employer can direct employees to take unpaid leave where it is unable to secure an alternative. I am of the view that the employer s failure to find alternatives was unfair to employees and that constitutes discrimination as the sole reason for the failure is the employee s pregnancy. The employer Page 23

12 is actually saying those who fall pregnant would do that at their own peril as there is no guarantee that an alternative will be found, and that cannot be condoned. The commissioner also stated that the bottom line was that there is an obligation to accommodate pregnant employees. In addition, the fact that the employer took skills into account in deciding whether there were appropriate jobs available, is unfair because it prejudices employees who do not have skills. The employer s policy amounted to telling employees that they were on their own. Finally, the following excerpt is important [26] It is important to note that not all pregnant women have support structure either emotionally or financially. The employer did not only instruct them to go on leave, the leave was an unpaid one. This should be viewed holistically as women who are expecting an addition in the family need to be financially stable and the employer should have been more considerate in this regard. I view this as some form of punishment to pregnant employees simply because of their pregnancy. It was the employer s responsibility to find alternatives for the applicants. If alternative employment is not found, the employer should at least pay them in full until they go on maternity leave. The commissioner ordered the employer to pay them their salary for the period of their unpaid leave, and ordered the employer to amend its policy in order to accommodate employees and to prevent the same or similar unfair discrimination from occurring in the future. It appears that the applicants claim was one based on section 6(1) of the EEA and not an equal pay claim based on section 6 (4). If this is the case, it may be arguable that they need not find a comparator. However, even if one accepts that there was discrimination on the grounds of pregnancy, what is noteworthy is the commissioner s finding that the discrimination was unfair and that there was an obligation to accommodate pregnant employees by granting paid leave until such time as their maternity leave became due. The duty to accommodate also takes into account the interests and needs of the employer. It should also be noted that the employer in this case, by providing for paid pregnancy leave, far exceeded the requirements of the Basic Conditions of Employment Act, 75 of In effect the arbitrator legislated that employees who cannot perform their work due to pregnancy are entitled to be paid even if they cannot work. This is evident fin the last excerpt from the award set out above. See also in this regard the award in Tsabane & others v Impala Platinum Ltd [2015] 8 BALR 873 (CCMA) where the commissioner dealt with a similar case and where it was also found that the employer had unfairly discriminated against pregnant employees. However the duty to accommodate was formulated in less stringent terms. P.A.K. le Roux Page 24