Slip & Trip Alert Notice 19

Slip 'n Trip

This is the nineteenth alert notice of those issues that will cause YOU to slip and definitely trip in 2024.

These issues will be incorporated into our famous seminar textbook as well as our highly sought-after PowerPoint presentation.

The attached notice deals with the following ‘tricky issues’: the unconstitutionality of s71(b) of the Local Government: Municipal Systems Act 32 of 2022,  the realisation that the consistency requirement does not entail absolute consistency but ‘reasonable consistency’ will suffice,  the realisation that the EEA does not impose a blanket prohibition on wage differentiation and the application of the test to determine whether or not unfair discrimination takes place, and the realisation that employing a new employee at a rate lower than an existing long-serving employee (occupying the same or similar position or a position of equal value) does not amount to unfair discrimination.

We look forward to YOU being part of this continuing learning event – secure YOUR seat,  register here.

  • Secton19 of the Constitution guarantees the right of every citizen to make political choices and to participate in the activities of a political party. The Local Government: Municipal Systems Act 32 of 2002 (the Systems Act) places limitations on the rights of municipal employees to hold political office in a political party. Until 2022, that limitation only extended to senior management, comprising municipal managers and managers directly accountable to them. However, in 2022, the Systems Act was amended and, in terms of s71B, the prohibition was extended to all municipal employees, whatever their status. How did the labour court recently deal with the following issues relating to the aforesaid scenario:
    • in Law Society of SA and Others v Minister for Transport and Another 2011 (1) SA 400 (CC), it was held that the rationality threshold is one established by the rule of law and that it requires the court to determine whether the measure adopted by the legislature is properly related to the public good it seeks to realise. How did the labour court apply this principle when it considered the constitutionality of s71(b) of the Systems Act?
    • what is the approach adopted by the labour court to determine whether the said s71(b) is a justifiable limitation on the right of municipal employees to make political choices and to participate in the activities of a political party?
    • on what basis did the labour court find that the preamble to the Amendment Systems Act, indicating the purpose of s71(b) to the barring of municipal managers and managers directly accountable to principal managers from holding political office in political parties and making no reference to other municipal employees, is not relevant to the issue of constitutionality but rather that the issue is whether the said statutory provision is linked to the purpose of limitation on the aforesaid constitutional rights raised by the respondents, namely, being to depoliticise and professionalise local government by eradicating political interference in municipal decision making, so as to maintain management stability and thus improve service delivery?
  • What are the factors identified by the labour court when considering whether or not a statutory provision meets the threshold of justifiability?
  • With reference to, inter alia, Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others 2014 (1) SACR 327 (CC), what is the type of evidence recently identified by the labour court to be tendered to demonstrate that the existence and enforcement of the limited constitutional right can reasonably be expected to control the risks identified and to advance the purpose of such limitation?
  • Item 6(3) of the Code of Good Practice: Dismissal envisages two types of consistencies, namely, historical consistency and current consistency. The labour court had the opportunity of considering the consistency element of a fair dismissal when an employer is faced with a large number of offending employees. How did it determine the content of ‘consistency’ with reference to SA Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC) when it stated that the best one can hope for in such an instance is ‘reasonable consistency’?
  • The labour court recently had to deal with the scenario as to the potential applicability of unfair discrimination in terms of s6(1) of the EEA where employees employed prior to a specific date (old employees) are remunerated at a higher rate than employees employed after such specific date (new employees). In dealing with such scenario, the labour court dealt with the following issues:
    • ‘arbitrary ground’ as provided for in s6(1) read with s11(2) of the EEA makes it clear that irrationality of differentiation per se will not win a discrimination case based upon an arbitrary ground. With reference to Harksen v Lane NO and Others 1998 (1) SA 300 (CC), what is the test reaffirmed by the labour court to determine whether or not an arbitrary ground complies with the test of discrimination?
    • s6(4) of the EEA does not impose a blanket prohibition on wage differentiation. What is the extent of the onus of an applicant pursuing a claim in terms of s6(4) of the EEA to demonstrate more than mere differentiation?
    • does the Harksen test entail that, if differentiation is not rational, the enquiry ends there and the conduct constitutes unfair discrimination?
    • with reference to Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v Food and Allied Workers Union obo Members and Others (2022) 43 ILJ 2584 (LAC), does differential remuneration, based on length of service, amount to unfair discrimination on an arbitrary ground?
    • with reference to Pioneer Foods (Pty) Ltd v Workers Against Regression and Others (2016) 37 ILJ 2872 (LC), when an employer employs a new employee on a rate lower than existing long-serving employees, to what extent does it amount to unfair discrimination when the newly-appointed employee had previous substantial experience with the employer concerned or with some other employer?
    • what are the requirements to be met, in terms of s11(2)(b) of the EEA, for a complainant to prove that the conduct complained of amounts to discrimination, with reference to Ntai and Others v SA Breweries Ltd (2001) 22 ILJ 214 (LC)?