By Johann Scheepers
In an article by the writer posted entitled “The Employment Equity Act, 47 of 2013 & Employment Equity Regulations, 2014 – Important Issues and Questions?” , it was mentioned that SA employers would be wise to revisit their Human Resources policies, procedures, guidelines and any document that may be relevant thereto with the purpose of ensuring compliance with the amendments to Employment Equity, 55 of 1998 [EEA].
The gratuitous advice referred to in the article supra was given in good faith especially if seen in the light of the promulgation of the amendments to South African Employment Equity legislation, namely Employment Equity Amendment Act, 47 of 2013 [EEAA] and the Employment Equity Regulations, 2014 [EER] which came into effect on 01 August 2014 [EEA].
Following thereon and as recent as on June 1, 2015 the SA Minister of Labour in accordance with the provisions of section 54(1) of the ‘new’ EEA, and on advice of the Commission for Employment Equity signed “The Code of Good Practice On Equal Pay/Remuneration For Work Of Equal Value” where after the Code was duly published in the Government Gazette, on June 1, 2015 – and so be it as the saying goes.
In the article referred to above a friendly comment was made in passing by the writer as to the statutory need to revisit and if necessary add or amend HR policies. It was stated that, “One hopes that employers are not adopting a ‘wait and see’ approach as to compliance with the legislation, for example to await a ‘test case’ or legal precedent to be set by the Courts or even the CCMA”.
Following thereon the South African Commission for Conciliation, Mediation & Arbitration (CCMA) published the first edition of a publication entitled, “Employment Equity Newsletter – CCMA” under the editorship of Senior Commissioner Winnie Everett, an internationally recognised authority in employment law and amongst other the subject matter of employment discrimination.
The said publication is bound to become an authoritative work of reference as to important developments in South Africa especially within the field of employment discrimination law not only insofar as it pertains to how the positive law is interpreted and applied by Commissioners of the CCMA and Judges of the Labour Courts.
The publication Employment Equity Newsletter – CCMA also contains a statistical comparative analysis of trends in the number of cases submitted to the CCMA for resolution as well as information as to the cause of action, outcome, albeit conciliated/mediated or arbitrated ‘adjudicated’.
Of interest to readers may be the editorial comment by Commissioner Everett in “Employment Equity Newsletter” (April/May 2015) 2nd ed, “The CCMA commissioners have seized the opportunity to provide clarity on the meaning of arbitrary grounds of unfair discrimination since the amendments to the Employment Equity Act (EEA) came into effect on 1 August 2014.
The amendments conferred jurisdiction on the CCMA to arbitrate unfair discrimination cases where the dispute involves sexual harassment, and all other unfair discrimination cases where the applicant earns below the Basic Conditions of Employment Act threshold [currently R205, 433.30 per year] or the parties consent to arbitration…In this issue we provide summaries of interesting and important cases dealing with unfair discrimination on both listed and arbitrary grounds. These include cases where the applicant claimed unfair discrimination on grounds of pregnancy…”
Discrimination on the ground of pregnancy is referred to as one of the listed grounds in terms of section 6(1) of the EEA that deals with the Prohibition of ‘Unfair’ Discrimination:
‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed grounds], including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’’; and
(2) It is not unfair discrimination to –
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;
‘‘(4) A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.” [Emphasis added].
In “Employment Equity Newsletter” 2nd Ed, 2 – Everett, C under the heading “Pregnancy” [listed ground] provides an interesting summary of two matters where the CCMA dealt with unfair discrimination on the ground of pregnancy.
The first matter pertained to a case where woman alleged unfair discrimination on the basis of her pregnancy. It involved a mine in Limpopo [a province in SA], where the underground worker was put on five months’ unpaid leave after a reported pregnancy.
To protect pregnant women, the employer normally takes steps to find alternative surface work, but in this case, the Commissioner found that applicant was placed on unpaid leave simply because she fell pregnant twice in three years. “She was the only person who fell pregnant twice in three years; that is why she was the only person subjected to this type of treatment out of a total of eighteen pregnant employees. She was clearly unfairly discriminated against on the basis of her pregnancy.” (LP5753-14)
The second matter involving pregnancy, the Managing Director of a company stated in an email that, “Clearly this pregnancy is becoming a problem. I can see it is becoming a disability and a liability”. The Commissioner found that the comment was unwarranted and discriminatory even if it was in response to a perceived drop in performance. (GATW 11893-15) [Emphasis added].
Upon perusal of the summaries of the two matters supra the following could be deduced:
- i) That the inconsistent and [unfair] discriminatory treatment of an Applicant vis-à-vis a comparator, regardless of the fact that both are pregnant, could not be a determinative factor used in justification of, or as a defence for differential treatment;
- ii) That an Applicant could not be penalised or treated less favourably in the form of the unilateral imposition of ‘unpaid leave’ for falling pregnant twice within a three year period, ostensibly on the ground of what could be termed ‘a predisposition to conceive or repetitive conception’; and
iii) That employers should desist from making unwarranted and potentially discriminatory remarks which may be offensive to the dignitas of the recipients thereof.
Upon perusal of articles posted on LinkedIn the aforesaid unwarranted and discriminatory comments made are not confined to the SA labour [mining] or other economic sectors. Discrimination based on pregnancy is an international phenomenon as is borne out by the cited matter as discussed below.
In an article by C Stoneburner Esq, “Hey pregnant lady, why don’t you stay home, enjoy some of our doughnuts, and put up your feet? – Employment Discrimination Report” (March 10, 2015) Fox Rothschild LLP, New York, “Although the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close”.
The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.
The Complaint alleged that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant. However, this was not a simple case of an employee being terminated because she was pregnant. “The complaint alleged that employees who were pregnant were required to provide “a written medical release” assuring the company that they did not have a “high-risk pregnancy” and that it was safe for the employee to perform normal job duties. [Emphasis added].
The EEOC also alleged that this medical release was required even in situations where employees did not request “any type of accommodations or disclose that there were any medical issues related to the pregnancy”.
When rumours spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant. She refused to confirm that she was in fact pregnant. Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance. Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note. Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.
According to the author, “This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children. Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.”
Having set the scene, so to speak for the purpose of this article it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.
Writer would also refer to the same or similar international jurisprudence on the subject matter that may prove of relevance and edification to the reader.
Pregnancy – Duty to Provide Reasonable Accommodation’ – CCMA Arbitration Award
[See: Tabane and others / Impala Platinum Ltd  8 BALR 873 (CCMA)]
The matter was referred to the Commission for arbitration in terms of Section 10 of the Employment Equity Act, No 55 of 1998 as amended (EEA). The dispute was couched in the form of ‘unfair discrimination on the grounds of pregnancy’. [See: NWRB 2464-14 – 25 May 2015].
Summary ff Background & Material Facts
Four Applicants referred a dispute against their employer, a mining conglomerate in SA, in that they alleged unfair discrimination by the Respondent and more specifically on the grounds as set out hereunder: