Article 48/2024

LabourEdge

What is the test to be applied when unfair discrimination is alleged on a listed ground in terms of s6(1) of the EEA?

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  • The answer to the above entails the test as set out in s11(1) of the EEA.
  • Step 1 entails that the employer must identify the specific listed ground and, if the employee fails to do so, the matter does not proceed to step 2.
  • Step 2 entails the employer discharging the onus on it to prove, on a balance of probabilities:
    • that the discrimination, as alleged, did not take place, or
    • if the discrimination did take place, that same is rational and not unfair or otherwise justifiable
    • if the employer discharges this onus, then the claim is dismissed for being bad in law – on the other hand, if the onus is not discharged, unfair discrimination on the listed ground has been established
July 3, 2025

Is it a requirement that each page of an affidavit must be initialled? Is it a requirement that every page of every annexure to an affidavit must be initialled?

June 26, 2025

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course.

June 19, 2025

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.