Workplace #Discrimination #SouthAfrica – #BRILLIANT – How to get a rock-solid case. Here are my slides. #Discrimination = #difference.

To prove discrimination, you must illustrate that there are differences between two sets of people in the same position based on a particular factor.
In SA you have #listedgrounds and #unlistedgrounds of discrimination.
Where a ground falls within the #listedgrounds there is said to be discrimination & the employer needs to prove that such discrimination is fair. Where the ground does not fall within the listed grounds, the discrimination itself needs to be proven.
s6(1) of the Employment Equity Act (EEA) prohibits unfair discrimination based directly or indirectly on various grounds, including #disability OR any other #ArbitraryGround.
s6(4) recognises that a difference in terms and conditions of employment, directly or indirectly based on any one or more of the grounds listed in s6(1), between employees of the same employer performing the same or substantially the same work or work of equal value, constitutes unfair discrimination.
In Qoyi v Metrorail the Court was tasked with determining a claim under section 6(4).
The Applicants performed similar work to other employees but received a reduced salary as they had opted to fall under the medical aid, but the Company subsidy did not cover the whole contribution needed. They claimed unfair discrimination based “on an arbitrary ground” in terms of s6(1) of the #EEA.
The LC looked at the test for proving discrimination on an arbitrary ground [See s9(2) of the #EEA= a complainant alleging unfair discrimination must prove, on a balance of probabilities, that:
•the conduct complained of is not rational;
•the conduct complained of amounts to discrimination; and
•the discrimination is unfair]
The LC held that despite s6(4) of the #EEA providing express redress where employees performing the same or substantially the same work or work of equal value are not receiving the same remuneration, the reason for differentiation must be directly or indirectly based on one or more of the grounds listed in s6(1). Held that because the Applicants did not rely on any grounds expressly identified but rather relied on the general category of “any other arbitrary ground” that the extra set of criteria [see s9(2) above] to be used when determining equal pay claims that effectively excludes certain challenges to discrepancies in remuneration unless those also have an unfairly discriminatory impact. The LC dismissed the claims. The case shows that although s6(1) of the EEA prohibits unfair discrimination “on an arbitrary ground”, the ground considered to be arbitrary should still be sufficiently similar to the expressly listed grounds. In short, #UnfairDiscrimination cannot be solely based on an #ArbitraryGround, it must at least be linked to a listed ground. A deplorable state for those wanting to prove ill-health discrimination who will have to link the claim to one of #disability.

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