Labour law – ARR224

Caselaw – Employment Equity Act

Prescribed materialStudy:• 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 JS355/07, 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 2 white trainers had higher income than 3 black trainers.o Onus on applicant to prove that discrimination on unacceptable ground

took place.o Applicant could not prove the allegation of ‘arbitrary grounds’.o E/r proved sufficient reasons, e.g. merit increases and seniority.o No unfair discrimination.

Caselaw - EEA (Unfair discrimination II)

• Woolworths v Whiteheado 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 Dinglero 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 raceo 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 Securityo 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 non-

promotion to captain amounts to unfair discriminaiton.

Caselaw - EEA (Unfair discrimination V)

• Germishuys v Upington Municipalityo 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 Videoo 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 Securityo 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 Jhbo 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 Industrieso 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 Connectiono 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 SAPSo 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: One of employees in workplace. Unfair discrimination. Failed to take reasonable steps.

o E/r dealt with it in adequate manner.

Caselaw - EEA (Affirmative action I)

• Ntai & Others v SA Breweries Ltdo 2 white trainers had higher income than 3 black trainerso 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 Securityo 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 Councilo 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 Towno 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 Towno 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.