Skip to main content

Article 24/2025

In Enever v Barloworld Equipment (2024) 35 SALLR 115 (LAC), the employee claimed, amongst others, being unfairly discriminated against by her employer on the grounds of being tested positive for the use of cannabis, used for non-medicinal purposes. With reference to Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC) and the principles of such case applied by the constitutional court in Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC), what approach did the labour appeal court follow when applying s11 of the EEA?

_____________________________________

IF THE ALLEGED DISCRIMINATION EXISTS ON A LISTED GROUND

  • The presumption is that the discrimination is unfair.
  • The onus is on the employer to prove either of the following:
    • the discrimination did not take place as alleged, or
    • the discrimination is rational/not unfair/otherwise justifiable

IF DISCRIMINATION IS ALLEGED ON AN ARBITRARY GROUND (i e A NON- LISTED GROUND)

  • The onus is on the employee to prove:
    • the conduct complained of is irrational
    • the conduct complained of amounts to discrimination
    • such discrimination is unfair
  • A non-listed ground must ‘smell, taste and feel’ like a listed ground and the test being the following: whether it impacts human dignity or affects humans adversely in a comparably serious manner as the listed grounds.

See, further, Naidoo v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC)

September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.