Labour law – ARR224

1. Labour law – ARR224 Caselaw – Employment Equity Act

2. Prescribed material Study: • Ntai & others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) • Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LC) • Leonard Dingler Employees Representative Council v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC) • Germishuys v Upington Municipality (2000) 21 ILJ 2439 (LC) • Swart v Mr Video (Pty) Ltd (1998) 19 ILJ 1315 (CCMA) • Langemaat v Minister of Safety and Security & others 1998 (4) BCLR 444 (T ) • Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC) • Datt v Gunnebo Industries (Pty) Ltd (unreported, LC case no JS355/07, 20 February 2009) • De Beer v SA Export Connection CC t/a Global Paws (2008) 29 ILJ 347 (LC) • Potgieter v National Commissioner of the SAPS & another (2009) 30 ILJ 1322 (LC) • Crotz v Worcester Transitional Local Council (2001) 22 ILJ 750 (CCMA) • Coetzer & others v Minister of Safety and Security (2003) 2 BLLR 173 • Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) • Dudley v City of Cape Town (2004) 25 ILJ 991; 2004 (8) BCLR 805

3. Caselaw - EEA (Unfair discrimination I) • Ntai & Others v SA Breweries Ltd • 2 white trainers had higher income than 3 black trainers. • Onus on applicant to prove that discrimination on unacceptable ground took place. • Applicant could not prove the allegation of ‘arbitrary grounds’. • E/r proved sufficient reasons, e.g. merit increases and seniority. • No unfair discrimination.

4. Caselaw - EEA (Unfair discrimination II) • Woolworths v Whitehead • Job offered to woman. Could not relocate to Cape Town. Later on offered job and was able to relocate. Was pregnant however. Appoint her only on fixed-term contract and offered permanent position to someone else. • Court found that e/r had rational economic reasons (continuity). Also that e/e could not prove that she would have been appointed was it not for the pregnancy.

5. Caselaw - EEA (Unfair discrimination III) • Leonard Dingler • E/r had 3 different funds: Staff benefit fund (White monthly); Pension fund (Black weekly); Provident fund (Black monthly) • Court found indirect discrimination based on race • Unfair? Look at effect of discrimination and whether it was reprehensible in community’s opinion? • Onus on e/r. • Unfair discrimination

6. Caselaw - EEA (Unfair discrimination IV) • Coetzer v Minister of Safety and Security • Bomb squad of SAPS did not have own EEP. White male inspectors refused promotion on basis of AA. • Court found no specific plan for AA and therefore non-promotion to captain amounts to unfair discriminaiton.

7. Caselaw - EEA (Unfair discrimination V) • Germishuys v Upington Municipality • White male was not appointed. Black male was appointed. White male alleged unfair discrimination. • Court looked at AA policy, interviews conducted, advertisement and competency tests. • White male made presumptions regarding his own competency. Black male was better. • No unfair discrimination.

8. Caselaw - EEA (Unfair discrimination VI) • Swart v Mr Video • Did not want to appoint older person because he feared that he/she would not accept instructions from younger person. • CCMA found that age is not determinative of capability. • Unfair discrimination.

9. Caselaw - EEA (Unfair discrimination VII) • Langemaat v Minister of Safety and Security • Medical aid refused that life-partner be registered as dependant. • Court found that a dependant relies on other for maintenance. • Unfair discrimination.

10. Caselaw - EEA (Unfair discrimination VIII) • Evans v Japanese School of Jhb • Forced to retire before agreed retirement age. • Court found no retirement policy. • Unfair discrimination based on age.

11. Caselaw - EEA (Unfair discrimination IX) • Datt v Gunnebo Industries • Dismissed by second manager after having been allowed by first manager to work beyond normal retirement age (ito agreement). • Court found that agreement with first manager gave rise to new terms. • Automatically unfair.

12. Caselaw - EEA (Unfair discrimination X) • De Beer v SA Export Connection • Appointed in permanent position. Pregnant soon thereafter. Small business which would be influenced by this. Agreement with e/r to return a month after birth. Twins. Request for further month. Dismissed. • Court found unfair discrimination based on reasons related to pregnancy. BCEA affords more leave.

13. Caselaw - EEA (Unfair discrimination XI) • Potgieter v National Commissioner of the SAPS • Applicant laid charges of sexual harassment. Resigned due to stress. Claimed that employer failed to comply with sect 60 of EEA. • Court found that in order to hold e/r liable: • One of employees in workplace. • Unfair discrimination. • Failed to take reasonable steps. • E/r dealt with it in adequate manner.

14. Caselaw - EEA (Affirmative action I) • Ntai & Others v SA Breweries Ltd • 2 white trainers had higher income than 3 black trainers • AA does not afford an individual right but is only a ‘shield’ against unfair discrimination

15. Caselaw - EEA (Affirmative action II) • Coetzer vir Minister of Safety and Security • AA imperative must be balanced with constitutional imperative: SAPS must still discharge responsibilities (good bomb squad) • If there is no AA-plan, AA can not be used as shield against unfair discrimination

16. Caselaw - EEA (Affirmative action III) • Crotz v Worcester Transitional Local Council • Nobody qualifies. Appoints other person. Allegation of unfair discrimination. • Court found that e/r has prerogative. • However, e/r had no EEP. • Unfair discrimination.

17. Caselaw - EEA (Affirmative action IV) • Harmse v City of Cape Town • Sect 20(1) & (2), EEA as a whole and Constitution. EE-plan may create legitimate expectation.

18. Caselaw - EEA (Affirmative action V) • Harmse v City of Cape Town • Individual employee can’t enforce AA-claim i.t.o. plan. Only an enforcement issue. • Lilian Dudley v City of Cape Town and Ivan Toms: Failure to give designated groups preference (failure to appoint i.r.o. AA) does not constitute unfair discrimination. Harmse wrong.