Skip to main content

Article 23/2025

The test for discrimination is well-established and set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (Harksen).

In Mbana v Shepstone & Wylie 2015 (6) BCLR 693 (CC) (Mbana), in considering Harksen, the constitutional court said that ‘[a]part from permitting differentiation on the basis of the internal requirements of a job … the test for unfair discrimination in the context of labour law is comparable to that laid down by the constitutional court in Harksen’.

What does this test entail so applicable to automatically unfair dismissals (ito s187(1)(f) of the LRA) and unfair discrimination (ito s6(1) of the EEA), as more recently applied by the labour appeal court in Enever v Barloworld Equipment South Africa (a division of Barloworld South Africa) (Pty) Ltd (2024) 35 SALLR 115 (LAC)?

_____________________________________

STEP 1

Did the act or omission differentiate between people or categories of people?

  • if there is no differentiation, there is also no discrimination
  • however, if there is differentiation, then the next step entails answering the question as to whether or not such differentiation amounts to discrimination

STEP 2

Does the differentiation amount to discrimination?

  • if the differentiation is on a listed ground, then discrimination has been established
  • if the differentiation is on a non-listed ground, then the claimant must prove that such differentiation is based on attributes and characteristics with the potential to impair human dignity, or affect humans adversely in a comparably serious manner to listed grounds
  • if the claimant cannot prove that the ground of differentiation has the characteristic with the potential to impair human dignity, or adversely affect human beings in a comparably serious manner to the listed grounds, then no discrimination has been established – on the other hand, if the requirements of the impairment of human dignity, or to affect adversely in a comparably serious manner to a listed ground, have been complied with, then what remains to be asked is whether or not such discrimination amounts to unfair discrimination

STEP 3

Is the discrimination unfair?

  • if the discrimination is on a listed ground, the presumption is that it is unfair unless the employer can prove fairness
  • if the discrimination is on a non-listed ground, unfairness must be established by the complainant – the test entails a determination of the impact of the discrimination on the complainant and others in similar positions
  • if there is compliance with the aforesaid test, unfair discrimination has been established – if there is non-compliance with the aforesaid test, the discrimination is fair
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?