UNFAIR DISCRIMINATION THE ADDED ARBITRARY GROUND
10 August 2017
The Employment Equity Act 55 of 1998 (the “EEA”) was amended by Act 47 of 2013 to broaden the net of unfair discrimination. The previous EEA already specifically prohibited anyone from discriminating against an employee based on any listed ground, including (amongst other things) sex, race, colour, sexual orientation and religion. This is what is referred to as a “closed” list. In other words, if it’s not on the list, it’s not covered by the EEA.
The amendment to section 6 of the EEA extended this list to include “[…] any other arbitrary ground”. Should someone now allege that they have been discriminated against (on grounds that fall outside of the list) they will merely have to prove that the conduct complained of is substantially similar to discrimination on one of the listed grounds. This amendment brings the EEA into closer alignment with the spirit of the Labour Relations Act 66 of 1995 (the “LRA”). Section 187(1)(f) of the LRA provides a similar list as that provided by the EEA but includes discrimination on any “arbitrary ground” and adds that dismissals based on these grounds are deemed automatically unfair.
In New Way Motor and Diesel Engineering (Pty) Ltd V Marsland  12 BLLR 1181 (LAC), the court held that discrimination on an arbitrary ground takes place when the alleged conduct has the potential to impair the fundamental dignity of the person who the conduct is aimed against. In that case, an employee claimed his dismissal was automatically unfair as it was based on arbitrary discrimination against him in that he suffered from depression (as confirmed by a psychiatrist). The court held that, even though this did not fall squarely into the listed ground of “disability” it did, in fact, amount to discrimination.
The case of NUMSA & Others v Gabriels (Pty) LTD  12 BLLR 1210 (LC), it was held by the court that discrimination on an unlisted ground must be similar to a listed ground. The court also decided that it must be a clearly identified ground that is based on attributes or characteristics which have the potential to impair the dignity of a person, or affect the person negatively.
The amendment to section 6(1) was designed to broaden the definition of discrimination and help more people find redress in even more situations of discrimination. Despite this, it does not seem that the addition of the term “arbitrary grounds” will drastically increase the original scope of section 6(1). The courts and CCMA will probably use the same test as previously used in determining whether or not discrimination took place (and, if it did, whether it was unfair).
In the event an employee refers a case of unfair discrimination, on a listed ground, to the CCMA, the company bears the onus of proving the discrimination did not take place. Where the alleged discrimination is on an unlisted ground, the employee bears the onus of proving discrimination.
In either event, the company shall have to prove that it had done everything it could to protect its employees from discrimination. However, this shift in onus may aid employers facing discrimination allegations based on an arbitrary ground to at least establish what the employee’s case is before being obliged to respond to it.