The content of the term ‘another arbitrary ground’ in terms of s6(1) of the EEA
Does a collective agreement, concluded in a bargaining council regulating conditions of service of employees, constitute administrative action reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000?
How did the labour appeal court recently interpret the phrase ‘any other arbitrary ground’ contained in s6(1) of the Employment Equity Act 55 of 1998?
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The labour appeal court, in Minister of Justice and Correctional Services and Others v Ramaila and Others (2021) 32 SALLR 15 (LAC); (2021) 42 ILJ 339 (LAC), in considering the above issues, adopted the following approach:
- first, whether Ramaila’s claim of unfair discrimination ‘on any other arbitrary ground’ was justiciable under s6(1) of the Employment Equity Act 55 of 1998 (‘EEA’) – s6(1) of the EEA provides that:
‘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, birth or any other arbitrary ground.’
- the labour appeal court has recently, in Naidoo and Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC), dealt comprehensively with the construction to be placed on the phrase ‘any other arbitrary ground’ as set out in 6(1) of the EEA
- the fundamental question before the court in Naidoo was whether a ‘narrow’ or a ‘broad’ interpretation of the compass of the phrase ‘any other arbitrary ground’ should prevail. The distinction suggested, on the one hand, that the compass is limited to a ground which is analogous to the listed grounds, and on the other, posited conduct required to be arbitrary, in the sense of being ‘capricious’
- the labour appeal court (after a careful examination of the jurisprudence of the constitutional court decisions of the labour appeal court and the labour court and some academic writings) endorsed a narrow compass interpretation thereof. It held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s6
- the prohibition which the equality provision in the Constitution, and by parity of reasoning the EEA, is directed at is the differentiation which impairs the fundamental dignity of human beings or in some other way affects persons adversely in a comparably serious manner (Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC), at paragraph [331])
- what is instructive from Naidoo (supra) is that the insertion of the word ‘other’ supports the conclusion that the phrase ‘any other arbitrary ground’ was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s6. Being a newcomer in the public service, or ‘newness’, as Ramaila termed it, as an attribute which he argued was used by the appellants to differentiate him, is far removed from any of the specified grounds or any ground akin or analogous to them
- based on the facts of the case, the labour appeal court concluded that so-called ‘newness’ in the public sector differentiating employees is far removed from any of the specified grounds or any grounds akin or analogous to them, resulting in the applicant having failed to discharge the required onus
