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Article 42/2025

What are the different stages when unfair discrimination is alleged to exist on a listed ground ito s6(1) of the EEA as opposed to the different stages applicable where unfair discrimination is alleged to exist on an arbitrary ground ito s6(1) of the EEA?

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DIFFERENT STAGES TO BE APPLIED WHERE UNFAIR DISCRIMINATION IS ALLEGED TO EXIST ON A LISTED GROUND, ito s6(1) OF THE EEA: APPLICATION OF s11(1) OF THE EEA

Stage 1

  1. It is required that the complainant must allege discrimination on a listed ground ito s6(1) of the EEA.
  2. If the complainant complies with this requirement, then the matter proceeds to stage 2.
  3. If the complainant does not comply with this requirement, then the process ‘stops here’ and the complaint is bad in law.

Stage 2

In this stage, the onus is on the employer to prove, on a balance or probabilities:

  • that discrimination as alleged did not take place at all, or
  • that discrimination did take place but it is rational and not unfair, or otherwise justifiable

If the employer discharged the onus, then it is the end of the process and the complaint has not been established on a balance of probabilities.

On the other hand, if the employer does not discharge the onus, then unfair discrimination has been established and the complainant is successful.

DIFFERENT STAGES TO BE ADOPTED WHERE UNFAIR DISCRIMINATION IS ALLEGED TO EXIST ON AN ARBITRARY GROUND ito s6(1) OF THE EEA: APPLICATION OF s11(2) OF THE EEA

Stage 1

The complainant must prove, on a balance of probabilities, that:

  • the conduct is irrational and
  • the conduct amounts to discrimination and
  • the discrimination is unfair

(in essence, an application of the test as set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC))

If the complainant discharges the above onus, then unfair discrimination is established.

On the other hand, if the complainant does not discharge the aforesaid onus, then the complaint is bad in law (and that is the end of the process).

See, further, Prinsloo v Van der Linde 1997 (3) SA 1012 (CC); Pioneer Foods (Pty) Ltd v Workers Against Regression (2016) 27 SALLR 125 (LC).

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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.

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

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

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

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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?