What legal recourse is available to employees who cannot prove discrimination on a listed ground and can subjective feelings of ill-treatment in the workplace amount to unfair discrimination?

In South Africa, the right to equality and protection against unfair discrimination is enshrined in the Constitution. The Employment Equity, 1998 (the "EEA") affirms this position and lists various grounds for discrimination.

The EEA states that unfair discrimination occurs when an employer shows favour, prejudice or bias for, or against, a person on a prohibited ground, including:

a person's 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, or on any other arbitrary ground.

In the recent judgment of Tshazibane v Montego Pet Nutrition and Others, Acting Judge Kroon reaffirmed the position that unfair discrimination is an offence of a special kind. In this case, the applicant, Mr Tshizibane, referred an unfair discrimination dispute to the Commission for Conciliation Mediation and Arbitration ("CCMA"). Mr Tshizibane was unable identify a listed ground that could find application to the facts of his case, and thus alleged that he had been unfairly discriminated against on an "arbitrary ground".

The CCMA Commissioner dismissed Mr Tshizibane's application "as he was unable to prove that there was unfair discrimination". Aggrieved by the outcome of the arbitration, Mr Tshizibane lodged a review application in which he contended that the Commissioner had failed to apply his mind to the dispute and the evidence before him.

Acting Judge Kroon dismissed the application to review the award. During the course of his judgment, he stressed the importance of establishing a valid ground of unfair discrimination. It is not enough that an employee claims that he has been victimised or has been treated unfairly to found a claim of unfair discrimination. What is required is an allegation (and proof) that the reason for the action complained of is one of the grounds referred to in section 6(1) of the EEA, for example race or sex.

He further stated that it is not sufficient for a complainant to show that his employer's conduct was irrational, arbitrary, capricious or even in bad faith. Even a demonstration of victimisation, maltreatment, favoritism, cronyism or nepotism will not, on its own, suffice as the basis for an unfair discrimination claim. Instead, a complainant is required to establish that they have been the object of unequal treatment based on attributes and characteristics that they either possesses or are associated and which falls within the ambit of section 6(1) of the EEA.

In relation to an unfair discrimination claim based on an arbitrary ground, Acting Judge Kroon reiterated that such a ground must be akin to a listed ground. He further acknowledged the principle set out in Naidoo and Others v Parliament of the Republic of South Africa that unfair discrimination will only occur on an unlisted or arbitrary ground if the differentiation constitutes an affront to human dignity or has an adverse effect with a comparably serious consequence.

If a complaint intends to place reliance on an arbitrary ground, AJ Kroon stated that a complainant must then show that the unequal treatment will have the potential to sully or diminish their intrinsic humanity and that of others in a similar situation. He emphasised and accepted the trite principle that complainants, and litigants alike, cannot vaguely and without more, refer to an "arbitrary ground" as the basis of the discrimination claim.

Therefore, an employee has no right of recourse in terms of the EEA solely because he can demonstrate that his employer has been nasty or unkind or because his employer was exacting some type of retaliation on him. Similarly, it may be said that if the complaint of an employee is sourced solely in the contention that his employer, with impure motive, picked on or bullied him or in any other manner treated him poorly because the employer had taken a disliking to him, the EEA will not afford protection and recourse. Additionally, an employee cannot merely rely on an arbitrary ground without identifying the specific ground he/she intends to rely on in this regard. AJ Kroon stressed that S6(1) of the EEA is not an "all-embracing provision". Particularly:

"If an employee is to prevail in a claim of unfair discrimination he must, as a point of departure, lay a proper foundation for such a claim. This is a sine qua non. In the absence of a valid ground of unfair discrimination, the claim will collapse"

In applying the above principles, Acting Judge Kroon held that Mr Tshizibane's review application was "destined to fail at the first hurdle for the reason that he was unable to identify a valid ground on which to base his claim of unfair discrimination". This case demonstrates the wrongly held view that any bad treatment in the workplace is equal to unfair discrimination, but that's not always true. Employees can't just say they feel singled out for "bad" treatment and expect it to be legally recognised as discrimination. This subjective view is not enough and will not meet the threshold set out in the EEA,Employees need to show that they have been treated unfairly based on a specific reason such as discrimination on a prohibited ground to have legal recourse.

The review application was ultimately dismissed.

It should be remembered, however, that employees who cannot show that discrimination on grounds prohibited by the EEA took place may have other remedies at their disposal. For example, a claim based on an alleged unfair constructive dismissal or a claim that the employer has committed an unfair labour practice as defined in the Labour Relations Act. The case serves as a reminder that while discrimination is a serious offense with significant legal consequences, employees must meet the legal threshold to prove their case.

Reviewed by Peter le Roux, an Executive at the ENSafrica employment department

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