Unfair discrimination in labour matters.

By S Mnisi 010 592 2321
cl***@sc****************.za
Differentiation between people or categories of people lies at the heart of the South African equality jurisprudence. 1
Discrimination is to “show favour, prejudice or bias for or against person on any arbitrary grounds, for example on the basis of 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 and birth by an employer.” 2
There are two forms of discrimination, namely fair discrimination and unfair discrimination. Fair discrimination is commonly acceptable if it is based on affirmative action, on inherent requirements of a particular job, compulsory discrimination by law, and based on productivity.3
Unfair discrimination is generally when any employer’s policy or practice shows favour, prejudice or bias against employees in terms of the aforementioned grounds and in which it is not fair and it can be considered to be unfair discrimination. Direct and indirect discrimination are two forms related to unfair discrimination.
It is easy to identify direct discrimination as it involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds. For example an employer follows “a policy of remunerating women employees on a lower scale without justification, whereas the male employees are remunerated at a much higher scale for doing the same work.”4
On the other hand, it is not easy to identify indirect discrimination. It is a more subtle form of discrimination, “it involves the application of policies and practices that are apparently neutral and do not explicitly distinguish between employees and job applicants. 5
Applicable legislation:
Section 6(1) of the Employment Equity Act No. 55 of 1998 reads as follows: “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, birth or on any other arbitrary ground.” 6
The Employment Equity Act Code of Good Practice on Key Aspects of Disability in the Workplace defines mental illness as a form of disability.7
Section 6(1) of the EEA is applicable to employees, including applicants, however it is limited to conduct occurring within the scope of an employment policy or practice.8
When an employee is unfairly discriminated against his or her human dignity is impaired. 9
Law in South Africa requires employers to treat employees who suffer from physical, mental and emotional problems gently. It is important to note that this does not mean that employers are required to go to the “ends of the earth” to accommodate employees who suffer from the abovementioned issues. Nevertheless, the employer is required by law to avoid discrimination against such employees and it would not be acceptable to dismiss them purely due to their illness. 10
Section 187(1)(f) of the Labour Relations Act No.66 of 1995 states that dismissal is automatically unfair if the employer unfairly discriminated against an employee, directly to indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political. 11
Dismissal of an employee on the grounds of mental illness is automatically unfair in terms of the Labour Relations Act.12
Mental health problems commonly come up in the workplace in the form of poor or lacklustre performance on the part of the employee. Employers have to respond to poor performance in the manner prescribed in the Schedule 8 of the Code of Good Practice – Dismissal, by incorporating a performance improvement programme, in which reasonable standards of performance are communicated clearly and the progression of employee’s towards these standards are mentored and monitored.13
The problem lies where mental health issues appear in other forms of misconduct such as acts of gross insolence, emotional or even violent outbursts, gross insubordination or irrational behaviour. It makes it difficult to identify these issues especially in the face of pending misconduct disciplinary action, whereby emotions are running high and the trust relationship between the employer and the employee has been impacted. 14
The Employment Equity Act Code of Good Practice on Employment of Persons with Disabilities clearly indicates that the requirement of reasonable accommodation is applicable to employees with disabilities who are suitably qualified for the job.15
The obligation of an employer to make reasonable accommodation arises when an applicant or employee voluntarily discloses a disability or when it is reasonably self-evident to the employer. 16
The nature of the accommodation depends on the individual, the degree and nature of impairment and its effect on the person, as well as on the job and the working environment and includes:
- Adapting existing facilities to make them accessible to persons with
disabilities; - Adapting existing equipment or acquiring new equipment including computer hardware and software to make it accessible to persons with disabilities;
- Reorganising workstations;
- Changing training and assessment materials and systems;
- Restructuring jobs so that non-essential functions are reassigned;
- Adjusting working conditions, including working time and leave;
- Providing specialised supervision, training and support for persons with disabilities in the workplace. 17
In the event that an employer is not able to reasonably accommodate the disabled employee without unjustifiable hardship, the employer may dismiss the employee. 18
Unjustified hardship is defined in the Disability Code as “action that requires significant or considerable difficulty or expense from the employer.” 19
In deciding whether the reasonable accommodation would cause unjustifiable hardship these are the following factors that may be considered, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business. 20
The recent case of Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37 (21 July 2020) 21 dealt with the automatically unfair dismissal of a long-standing employee of the Legal Aid Board because of depression. The appellant, Legal Aid South Africa, appeals against the judgment of the Labour Court which held that the respondent’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act on the ground of his suffering depression.
In March 2007 the respondent commenced employment as a paralegal with the appellant at the George Justice Centre. The respondent’s mental health problems started in or around 2010, when he was diagnosed with depression for the first time. Correspondence during 2012 reveals that the respondent’s struggle with depression was an ongoing problem of which the appellant remained aware. On a few occasions prior to September 2013, the respondent was absent from work without leave and without furnishing any explanation for such absence, he was given a final warning in respect of this category of transgression. The respondent failed to report for duty at work on 17 working days in the period 30 August 2013 to 5 November 2013.
Disciplinary proceedings took place on 20 to 21 November and 9 December 2013 in which the respondent was charged with four counts namely, absence from work for 17 days; transgression of the appellant’s policies by failing to inform his manager of his absence from work; insolence relating to the occasion at the CCMA in Riversdale; and refusal to obey a lawful and reasonable instruction from Nicholls to attend to a prisoner at Mossel Bay Prison on 10 October 2013. The Chairperson disallowed the medical evidence tendered by the respondent, and concluded that the respondent was guilty of all four counts of misconduct. The respondent’s internal appeal was also rejected, he was dismissed with effect from 25 February 2014.
Labour Court Proceedings:
The labour Court made certain procedural rulings, which had an impact on the evidence presented. Firstly, the Court held that the respondent had not pleaded a claim based on an unfair dismissal, and secondly, that the appellant was accordingly only required to answer to allegations of automatically unfair dismissal and discrimination.
After an exchange with Mr Leslie (counsel for the respondent) on the issue, the Labour Court ruled that it would not entertain a claim of unfair dismissal. It stated:
“My view, after perusing the pleadings, is that that claim has not been pleaded, and I think Mr Du Preez (counsel for the appellant) is correct that it cannot be pleaded in the pre-trial minute. In the statement of case, the applicant concedes that the charges on which he has been found guilty are very serious, but his defence is that all this happened due to his disability. There is nowhere where I find that his dismissal was substantively and procedurally unfair. That has not been pleaded.”
At the close of their evidence, the appellant applied for absolution from the instance on the grounds that the respondent had failed to make out a prima facie case of automatically unfair dismissal or discrimination. The Labour Court rejected the application and held that the reason for the dismissal was that the appellant had discriminated against the respondent on the grounds of his mental condition.
The Court stated the following:
“From this perspective, in my view, the respondent would not have dismissed the applicant had the latter not suffered from his condition. His conduct as alleged by the employer and for which he was dismissed was inextricably linked to his mental condition. The most probable inference to be drawn from I am convinced that the applicant has led adequate evidence to indicate that he had suffered from depression and the respondent was, throughout, aware of his mental condition. I am, therefore, satisfied that the applicant has made out a prima facie case and, thus, discharged the evidential burden to show that the reason for his dismissal was on account of his mental condition. On the contrary, the respondent has failed to discharge the onus to prove the reason for dismissal was permissible….I am therefore satisfied that the applicant has raised a credible possibility that the dominant reason for the dismissal was his mental condition.”
The Labour Court made reference to the decision in the matter of Kroukam v SA Airlink (Pty) Ltd that in light of the appellant’s failure to lead evidence, the respondent’s evidence about his depression was sufficient to give rise to a credible possibility that an automatically unfair dismissal had taken place. It relied on this conclusion to hold that the dismissal was automatically unfair under the Labour Relations Act No.66 of 1995 and at the same time amounted to unfair discrimination under the EEA, and it granted relief accordingly.
Evaluation: Labour Appeal Court Proceedings :
The court in Kroukam v SA Airlink (Pty) Ltd defined evidentiary burdens regarding the issues arising in an alleged automatically unfair dismissal as follows:
“In my view, section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in section 187 for constituting an automatically unfair dismissal.”
The Labour Appeal Court stated that the respondent did not produce credible evidence, and accordingly has failed to prove, either that the treatment accorded to him by appellant in any way differed from the treatment accorded to other employees, or, more importantly, that the reason for any such alleged differential treatment was his condition of depression. The respondent has not established a credible possibility that his dismissal was automatically unfair. Nor has he shown on a balance of probabilities discrimination on a prohibited ground under the EEA. The more probable reason for his dismissal was the misconduct to which he admitted in the disciplinary enquiry and recorded as common cause in the pre-trial minute.
In addition, where depression may account in part for an employee’s misconduct, depending on the circumstances and the nature of the misconduct, dismissal may not be appropriate. However, for the reasons explained, in this instance, there was no proper claim of substantive unfairness before the Labour Court which is the subject of an appeal or cross-appeal before us. Our jurisdiction in this appeal is constrained by the pleadings.
Order :
For the reasons discussed, the Labour Court accordingly erred in finding unfair discrimination and that the dismissal was automatically unfair. In the premises, the appeal is upheld. The orders of the Labour Court are set aside and substituted with an order dismissing the application.
There are different forms of depression on a wide spectrum, ranging from clinical depression to psychotic depression and employers need to recognise these forms of depression. 22
Where the form of depression falls within the definition of a disability, it should be recognised as such.23
Bearing in mind the prevalence of depression and the negative impact it has on the workplace, employers are strongly encouraged to introduce a culture of openness and understanding that promotes a safe space for disclosure where employees are given assurance that they will not suffer negative consequences but instead will be supported and assisted.24
Footnotes:
- Writer S “The meaning of unfair discrimination in South Africa” 2019.
- CCMA Info Sheet: Discrimination 2018.
- CCMA Info Sheet: Discrimination 2018.
- Albertyn W “Discrimination in the Workplace” 2015.
- Albertyn W “Discrimination in the Workplace” 2015.
- Section 6(1) of the Employment Equity Act No. 55 of 1998.
- Employment Equity Act 55 of 1998 Code of Good Practice on Key Aspects of Disability in the Workplace.
- Du Toit, Bosch, Woolfrey, Godfrey, Cooper, Giles, Bosch and Rossouw Labour Relations Law: A comprehensive Guide (2011) 575.
- Hoffmann v South African Airways par 27
- Israelstam I “Employees Can Drive Employers Crazy” 2019.
- Section 187(1)(f) of the Labour Relations Act No.66 of 1995.
- Labour Relations Act 55 of 1996.
- Yeates M “OHSA – yes, this includes mental health – what does the law say?” 2020.
- Yeates M “OHSA – yes, this includes mental health – what does the law say?” 2020.
- Item 6.3 of the Code of Good Practice on Employment of Persons with Disabilities 2015.
- Item 6.4 of the Code of Good Practice on Employment of Persons with Disabilities 2015.
- Item 6.9 of the Code of Good Practice on Employment of Persons with Disabilities 2015.
- Jordaan B “Dismissing an Employee due to Disability” 2017.
- Item 6.12 of the Code of Good Practice on Employment of Persons with Disabilities 2015.
- Item 6 of the Code of Good Practice on Employment of Persons with Disabilities 2015.
- Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37 (21 July 2020).
- Bismilla S and Gantley K “The impact of stress-related illnesses and psychological issues in the workplace”2018.
- Bismilla S and Gantley K “The impact of stress-related illnesses and psychological issues in the workplace”2018.
- Bismilla S and Gantley K “The impact of stress-related illnesses and psychological issues in the workplace”2018.
DISCLAIMER: This article does not serve to constitute the giving of, nor purport to be the giving of, legal advice, nor does it purport to replace any necessity to obtain the proper legal advice in any matter. Please feel free to contact us on 010 592 2321 to assist you should you require professional legal advice and assistance.