Labour law ARR 224 Caselaw Employment Equity Act

Labour law – ARR 224 Caselaw – Employment Equity Act

Prescribed material Study: • Ntai & others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) • Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LC) • Leonard Dingler Employees Representative Council v Leonard Dingler (Pty) Ltd & • • • others (1998) 19 ILJ 285 (LC) Germishuys v Upington Municipality (2000) 21 ILJ 2439 (LC) Swart v Mr Video (Pty) Ltd (1998) 19 ILJ 1315 (CCMA) Langemaat v Minister of Safety and Security & others 1998 (4) BCLR 444 (T ) Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC) Datt v Gunnebo Industries (Pty) Ltd (unreported, LC case no JS 355/07, 20 February 2009) De Beer v SA Export Connection CC t/a Global Paws (2008) 29 ILJ 347 (LC) Potgieter v National Commissioner of the SAPS & another (2009) 30 ILJ 1322 (LC) Crotz v Worcester Transitional Local Council (2001) 22 ILJ 750 (CCMA) Coetzer & others v Minister of Safety and Security (2003) 2 BLLR 173 Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) Dudley v City of Cape Town (2004) 25 ILJ 991; 2004 (8) BCLR 805

Caselaw - EEA (Unfair discrimination I) • Ntai & Others v SA Breweries Ltd o o o 2 white trainers had higher income than 3 black trainers. Onus on applicant to prove that discrimination on unacceptable ground took place. Applicant could not prove the allegation of ‘arbitrary grounds’. E/r proved sufficient reasons, e. g. merit increases and seniority. No unfair discrimination.

Caselaw - EEA (Unfair discrimination II) • Woolworths v Whitehead o Job offered to woman. Could not relocate to Cape Town. Later on offered job and was able to relocate. Was pregnant however. Appoint her only on fixed-term contract and offered permanent position to someone else. o Court found that e/r had rational economic reasons (continuity). Also that e/e could not prove that she would have been appointed was it not for the pregnancy.

Caselaw - EEA (Unfair discrimination III) • Leonard Dingler o E/r had 3 different funds: Staff benefit fund (White monthly); Pension fund (Black weekly); Provident fund (Black monthly) o Court found indirect discrimination based on race o Unfair? Look at effect of discrimination and whether it was reprehensible in community’s opinion? o Onus on e/r. o Unfair discrimination

Caselaw - EEA (Unfair discrimination IV) • Coetzer v Minister of Safety and Security o Bomb squad of SAPS did not have own EEP. White male inspectors refused promotion on basis of AA. o Court found no specific plan for AA and therefore nonpromotion to captain amounts to unfair discriminaiton.

Caselaw - EEA (Unfair discrimination V) • Germishuys v Upington Municipality o White male was not appointed. Black male was appointed. White male alleged unfair discrimination. o Court looked at AA policy, interviews conducted, advertisement and competency tests. o White male made presumptions regarding his own competency. Black male was better. o No unfair discrimination.

Caselaw - EEA (Unfair discrimination VI) • Swart v Mr Video o Did not want to appoint older person because he feared that he/she would not accept instructions from younger person. o CCMA found that age is not determinative of capability. o Unfair discrimination.

Caselaw - EEA (Unfair discrimination VII) • Langemaat v Minister of Safety and Security o Medical aid refused that life-partner be registered as dependant. o Court found that a dependant relies on other for maintenance. o Unfair discrimination.

Caselaw - EEA (Unfair discrimination VIII) • Evans v Japanese School of Jhb o Forced to retire before agreed retirement age. o Court found no retirement policy. o Unfair discrimination based on age.

Caselaw - EEA (Unfair discrimination IX) • Datt v Gunnebo Industries o Dismissed by second manager after having been allowed by first manager to work beyond normal retirement age (ito agreement). o Court found that agreement with first manager gave rise to new terms. o Automatically unfair.

Caselaw - EEA (Unfair discrimination X) • De Beer v SA Export Connection o Appointed in permanent position. Pregnant soon thereafter. Small business which would be influenced by this. Agreement with e/r to return a month after birth. Twins. Request for further month. Dismissed. o Court found unfair discrimination based on reasons related to pregnancy. BCEA affords more leave.

Caselaw - EEA (Unfair discrimination XI) • Potgieter v National Commissioner of the SAPS o Applicant laid charges of sexual harassment. Resigned due to stress. Claimed that employer failed to comply with sect 60 of EEA. o Court found that in order to hold e/r liable: v One of employees in workplace. v Unfair discrimination. v Failed to take reasonable steps. o E/r dealt with it in adequate manner.

Caselaw - EEA (Affirmative action I) • Ntai & Others v SA Breweries Ltd o o 2 white trainers had higher income than 3 black trainers AA does not afford an individual right but is only a ‘shield’ against unfair discrimination

Caselaw - EEA (Affirmative action II) • Coetzer vir Minister of Safety and Security o AA imperative must be balanced with constitutional imperative: SAPS must still discharge responsibilities (good bomb squad) o If there is no AA-plan, AA can not be used as shield against unfair discrimination

Caselaw - EEA (Affirmative action III) • Crotz v Worcester Transitional Local Council o Nobody qualifies. Appoints other person. Allegation of unfair discrimination. o Court found that e/r has prerogative. o However, e/r had no EEP. o Unfair discrimination.

Caselaw - EEA (Affirmative action IV) • Harmse v City of Cape Town o Sect 20(1) & (2), EEA as a whole and Constitution. EE-plan may create legitimate expectation.

Caselaw - EEA (Affirmative action V) • Harmse v City of Cape Town o Individual employee can’t enforce AA-claim i. t. o. plan. Only an enforcement issue. o Lilian Dudley v City of Cape Town and Ivan Toms: Failure to give designated groups preference (failure to appoint i. r. o. AA) does not constitute unfair discrimination. Harmse wrong.