Excerpts from the latest editorial of Prof Darcy du Toit When is discrimination “arbitrary”, or “unfair”? that appeared in IR Network published online by LexisNexis [subscription required].
“In essence, ‘arbitrary’ has been interpreted as describing conduct which is ‘capricious or proceeding merely from whim and not based on reason or principle’ – in other words, irrational. [Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) para 42]. Significantly, in terms of the amended EEA it is necessary to show inter alia that ‘arbitrary’ discrimination was ‘irrational’. It will be obvious that an irrational decision does not necessarily impair the dignity of an employee in the same way as, say, an exclusion based on her/his race or gender. If it did, it would have been covered by the existing concept of ‘unlisted’ grounds and the addition of ‘arbitrary’ grounds would have been superfluous.
But, since Parliament is deemed not to enact superfluous provisions, it must be presumed that the term in some way changed the existing scope of section 6. The nature of that change appears from the case law analysing the meaning of ‘arbitrary’, as outlined above. It describes acts or conduct by an employer which deny an employee equality of opportunity or treatment and are based on a ground which cannot be rationally justified. For such a claim to succeed, the employee must obviously establish the ground on which the alleged discrimination is based, which Ms Duma did. And the employer had failed to place any evidence before the court to justify the denial of equal treatment based on geographical location, thus allowing the claim to succeed”.