An employer may not unfairly discriminated against an employee, directly or indirectly on any arbitrary ground including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility

Section 187 of the Labour Relations Act lists the reasons for which an employee may not be dismissed under any circumstances – such dismissals are automatically unfair. Once it is proved that the employee is dismissed for any of the reasons specified in section187, the employer can raise no defense and the employee is entitled to reinstatement or, in exceptional cases, compensation. Victims of automatically unfair dismissals will invariably be reinstated, unless they choose compensation instead.

Employees claiming to be victims of automatically unfair dismissals for purposes of section 187 (1) (f) must prove two things: first, that they were discriminated against; second that the discrimination was unfair. If an employer dismisses an employee on any of the grounds listed in section 187 (1) (f), the dismissal is discriminatory.

Examples of automatically unfair dismissals:

– A reported case referred to a fireman subject to sustained racist abuse by colleagues. There was a series of incidents in which the employee was subject to racist abuse. He claimed that he had been unfairly discriminated against and that the employer had done nothing to protect him from racist abuse. The Employment Equity Act 55 of 1998 provides that if an employer fails to take steps to prevent employees from discriminating against each other, the employer may be held liable.

– Five employees, all male officers at Pollsmoor Prison, Cape Town, were dismissed after they refused to obey the new commanding officer’s instruction to cut off their dreadlocks. Three of the five employees claimed they wore dreadlocks because they adhered to the Rastafarian faith, and the other two said they did so for cultural reasons. They claimed that their dismissals were automatically unfair because they had been discriminated against on the basis of their religion, conscience, belief and/or gender. The Department contended that it had merely sought to enforce the regulation dress code, strict compliance with which was necessary to maintain discipline. The employees had not been discriminated against because the dress code applied to all. Moreover, the employees’ dreadlocks made them “soft targets” for prisoners, because it was widely known that dagga smoking was a tenet of the Rastafarian faith. The instruction to remove their dreadlocks would have had a drastic effect on the employees, who would be scorned by those who practiced their faith if they obeyed, or precluded from practicing their traditional beliefs. The Court noted further that female officers were permitted to wear dreadlocks. The Court accordingly, ruled that the employees had been discriminated against on the basis of gender, and that their dismissals were automatically unfair. The employer ordered to reinstate with full retrospective effect those employees who wished to be reinstated, or to pay those who did not wish to be reinstated compensation equivalent to 20 month’s remuneration, including increases that would have been granted after their dismissals.

Dismissal constituting discrimination on basis of employee’s mental condition is automatically unfair. An employee suffered a nervous breakdown, he returned to work and noted a marked change in the manner in which he was treated by his managerial colleagues. He testified that they treated him as if he had a contagious disease. The Labour Court found that the dismissal was automatically unfair because his mental condition was the dominant reason for the ill treatment to which he was subjected. This case fell within the definition of a “disability” and therefore fell within the scope of section 187 (1) (f) of the LRA.

Discrimination against transsexuals – How should an employer respond if it is informed by a male employee that the employee is undergoing gender-reassignment surgery to change his gender to a female? No doubt, this situation will present considerable challenges to any employer, the danger being unfair discrimination. An employer cannot dismiss an employee who failed to disclose, during a job interview, that he was planning to have a sex change without the dismissal being automatically unfair.

– Another reported case of a dismissal that has been held to be automatically unfair because the employee was discriminated against on the basis of family responsibility. The employee had resigned after being transferred to night shift after returning from maternity leave. She claimed that other employees without young children could have been chosen. The CCMA agreed, and averred that compelling her to work night shift had a discriminatory effect on the employee.

– When a retirement age is agreed upon, a dismissal prior to that date based solely on the employee’s age will be automatically unfair – ie dismissal of a teacher at age 68 was deemed to be automatically unfair because it had been agreed that she would work until the age 72 years.

Prior to the employee reaching retirement age, it would be in the interest of the employer to conclude a written agreement to extend the period of employ of the employee for a further fixed term period, to avoid possible litigation by the employee.

An unfair discrimination dispute may be referred to the CCMA for conciliation within six months from the date when the act or omission was alleged to have arisen. Once the disputes has been referred to the CCMA for conciliation, the CCMA must attempt to resolve the dispute through conciliation. If the dispute remains unresolved after conciliation, the dispute may be referred to this Labour Court for adjudication and/or to the CCMA for arbitration if both parties have consented to do so. There is no time limit within which such a dispute should be referred to this Court for adjudication. It should be made within a reasonable period.

For further information or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za