South Africa: You Need To Do More Than Just Say You Have Been Discriminated Against

Last Updated: 27 March 2019
Article by Ludwig Frahm-Arp

One of the aims and objectives of the Employment Equity Act is to eliminate discrimination in the workplace. As a means of doing so, the Act provides a mechanism by which employees are able to sue their employers where they have been discriminated against.

The Act divides such claims into two categories: claims based on one of the prohibited grounds of discrimination listed in the Act (what is referred to as a "listed ground") and claims based on any other arbitrary ground (what is referred to as "unlisted grounds").

If the claim is based on a listed ground, then there is a presumption that the conduct of the employer constitutes discrimination and the employer has the onus to prove that the conduct does not constitute discrimination, or if it does, that it is not unfair.

The question that arises is what evidence is an employee required to submit when alleging that they have been discriminated against on one of the listed grounds? Is it sufficient for the employee to merely claim that he or she is paid less than another employee because of his or her race, or must the employee put up some evidence to support this allegation? This was the question the Labour Court grappled with in Sasol Chemical Operations (Pty) Ltd v CCMA & Others.

Mr Mokoena complained that he was discriminated against because he and another employee, Mr de Lange, had been employed to perform the same work on the same grade, yet they were not paid the same. Importantly, Mr Mokoena did not content that the reason for the difference in pay was that Mr de Lange was white and he was not. In fact, Mr Mokoena made no assertion as to the reason for the difference in pay, he merely contended that the difference in pay was unfair and that he was discriminated against as a result.

It was only in the arbitration proceedings, when pressed by the Commissioner as to whether he was claiming that he was discriminated against as a result of his race that Mr Mokoena said "yes". But he did not more. The key question on appeal was whether a bare contention by an employee that he has been racially discriminated against is sufficient to constitute an allegation of racial discrimination and thus trigger the employer's onus to prove either the absence of discrimination or that the discrimination was fair.

The Labour Court found that the employee does not need to make out a prima facie case, as would be required in the ordinary course if the burden of proof was not reversed, but what is needed is more than an unsupported contention or mere accusation. At the very least the employee must produce sufficient evidence to cast doubt on the reason put forward by the employer for its actions, such that the employer is required to establish on a balance of probabilities that its explanation should be accepted and that its conduct does not constitute discrimination or is not unfair.

It is therefore important when confronted with such cases not simply to accept the employee's claim that they have been discriminated against, but to require them to explain to you why they contend that to be the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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