A constitutional reading of the test for unfair discrimination in labour law

• Jurisdiction: South Africa
• Date: 23 May 2019
• Published date: 23 May 2019
• Author: Carole Cooper
• Citation: 2001 Acta Juridica 121
• Pages: 121-146

A constitutional reading of the test for

unfair discrimination in labour law

CAROLE COOPER*

University of the Witwatersrand

I INTRODUCTION

Discrimination and inequality in the workplace are part of a broader

pattern of inequality and discrimination which has marked the social,

political and economic landscape of South Africa. The country’s tran-

sition to a constitutional state in 1996 with the passing of the final

Constitution has had a major impact on the development of the

law, as well as on practices and attitudes throughout society, including

the workplace. The values of the Constitution have laid the founda-

tion for an open and democratic society based on justice, fairness,

equality and freedom.

1

The Constitutional Court has held that the

Constitution articulates an ethos which is ‘democratic, universalistic,

caring and aspirationally egalitarian’. This ethos, it will be argued,

should also inform the approach to the weighing of rights between

employer and employee within the labour context.

2

In 1998 a new Employment Equity Act (EEA)

3

was passed in South

Africa. The unfair discrimination provision in that Act

4

was trans-

posed in an amended form from the Labour Relations Act

(LRA).

5

Both provisions largely mirror the equality right’s unfair

* BA (Witwatersrand) MA (Sussex) MA (African Studies) (London) LLB (UNISA); Head of

the Labour Project, Centre for Applied Legal Studies, University of the Witwatersrand.

1

The Constitution of the Republicof South Africa 108 of 1996 states that South Africa is built on

the following values: human dignity, the achievement of equality and the advancement of human

rightsand freedoms; non racialism and non sexism; the supremacy of the Constitution and the rule of

law; adult universal suffrage, a national common voters roll, regular elections, and a multiparty

system of democratic government to ensure accountability, responsiveness and openness.

2

S v Makwanyane & Others 1995 (3) SA 391 (CC) at para 262.

3

Act 55 of 1998.

4

The unfair discrimination provision in s 6 reads: ‘(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, ethnic

or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief,

political opinion, culture, language and birth. (2) It is not unfair discrimination to – take

affirmative action measures consistent with the purpose of this Act; or distinguish, exclude or

prefer any person on the basis of an inherent requirement of a job.’

5

Act 66 of 1995. Item 2(1)(a) relating to unfair discrimination, formed part of the unfair labour

practice item(2) in Schedule 7 (Part B), theintention being that this part would later be excised from

the Act. While item 2(1)(a) has been excised and inserted in an amended form in the EEA, the other

sub-itemsof the provision, which deal with other kinds of unfair labour practices remain. The unfair

discrimination sub-item (2(1)(a)) reads as follows: ‘For the purposes of this item, an unfair labour

practice means any unfair act or omission that arises between an employer and an employee,

involving the unfair discrimination, either directly or indirectly, against an employee on any

arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour,

sexual orientation, age, disability, religion, marital status or family responsibility. . .’

121

2001 Acta Juridica 121

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discrimination provision in the Constitution’s Bill of Rights.

6

The

argument of this chapter is that despite the similarities between the

unfair discrimination provisions of the EEA and the LRA, there are

significant differences, both in relation to the wording of the provi-

sions and their context. These differences should allow for a jurispru-

dential reading of the EEA’s unfair discrimination provision which

reflects more closely the test for unfair discrimination in the Consti-

tution’s equality provision, particularly the impact of the impugned

conduct on the individual as part of a group subject to discrimination,

than has been possible under the LRA. The chapter will also argue that

labour jurisprudence on unfair discrimination as applied by the labour

courts has been uneven and confusing: in part this reflects the compet-

ing influences of the heritage of labour law and the new constitutional

norms and values, and in part problems within the wording of the

unfair discrimination provision in the LRA itself and the way in which

it has been interpreted.

II THE NOTION OF UNFAIR DISCRIMINATION IN THE

LABOUR RELATIONS ACT

The notion of fairness under the old labour law regime was one in

which the rights of the employer and employee were held in a strict

balance. The old Industrial Court developed a body of rules in which

equity was seen broadly as encompassing a balancing of employer and

employee interests in order to achieve the Act’s objective of labour

peace.

7

Under the old regime the unfair labour practice provision was

structured in a way which emphasized the notion of impartiality. As

stated by Brassey,

‘The same conscious determination to appear impartial is evident in the

unfair labour practice definition itself. The first sub-paragraph hits at

conduct that ‘‘unfairly affects’’ employees. It is counterbalanced by the

second sub-paragraph, which hits at conduct that ‘‘unfairly affects’’

employers. The third and fourth sub-paragraphs apply to both. The

pattern of even-handedness is scrupulously sustained.’

8

While the notion of a balancing of interests between employer and

employee is still central to the 1995 LRA, an analysis of its provisions

shows that this balancing does not require the same kind of scrupulous

and formalistic evenhandedness as previously. To continue to apply

6

Sections 9(3) and (4) of the equality right read as follows: ‘(3) The state may not unfairly

discriminate directly or indirectly against anyone on one or more grounds, including race,

gender, sex, pregnancy, marital status, ethnic or social origin, colour sexual orientation, age,

disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly

discriminate directly or indirectly against anyone on one or more grounds in terms of subsection

(3). National legislation must be enacted to prevent or prohibit unfair discrimination.’

7

M Brassey and C Cooper ‘Labour rights’ in M Chaskalson et al Constitutional Law in South

Africa (1998) ch 30 at 17.

8

M Brassey et al The New Labour Law (1987) 63.

122 EQUALITY LAW

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