Alleging Discrimination based on an Arbitrary Ground:
For an applicant to successfully prosecute his or her case on the basis of unfair discrimination on an “arbitrary ground” as contemplated in section 6(1) read together with section 11(2) of the EEA, the applicant will be required to identify and state the ground relied upon and such ground must have some characteristics that impacts upon his/her human dignity.
Section 6 of the EEA provides as follows:
“Prohibition of unfair discrimination
(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, ethic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, or on any other arbitrary ground.
(4) A difference in terms of conditions of employment between employees of the same employer performing the same 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.”
Section 11(2) deal with the burden of proof and provides as follows:
“If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that –
(a) The conduct complained of is not rational;
(b) The conduct complained of amounts to discrimination; and
(c) The discrimination is unfair.”
The Constitutional Court (CC) has described three steps in the process of considering a discrimination case –
- Step 1: Establish whether the respondent’s policy differentiates between people;
- Step 2: Establish whether the differentiation amounts to discrimination; and
- Step 3: Determine whether the discrimination is unfair.
The amendments to the EEA introduced the following four important changes:
(a) The phrase “or on any other arbitrary ground” was added to section 6(1) of the EEA;
(b) Enhanced arbitration jurisdiction for the CCMA in all sexual harassment matters and for applicants earning below the BCEA -threshold;
(c) A new and dedicated “equal pay provision” in section 6(4) of the EEAA was introduced prohibiting unfair discrimination in terms and conditions of employment; and
(d) In discrimination based on an arbitrary ground, section 11(2) makes it clear that the onus remains on the applicant to show irrationality and the unfairness of discrimination.
It is not advisable for Applicants to merely state that there is unfair discrimination and that such discrimination is based on an arbitrary ground. Where a complainant alleges unfair discrimination on an arbitrary ground, the complainant is required to define the ground and has the burden of proof. An Applicant would, therefore, be required to identify the arbitrary ground on which he or she relies and furthermore prove that his or her human dignity is affected because of this ground.
The test for unfair discrimination is that the differentiation must impair the fundamental dignity of people as human beings because of attributes or characteristics attached to them.
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