According to its website the New York Radio City Rockettes are “a celebrated world-class precision dance company that exemplifies extraordinary talent, athleticism, teamwork, and self-confidence.   Captivating New York City and beyond through the Radio City Christmas Spectacular, the Rockettes prove that if you dream big together, you achieve together.   When this sisterhood comes together as a team, magic happens”.   A similar dance group in South Africa would surely be allowed to include only  female dancers who meet the specific height and other requirements of the ‘job’.

Applying ILO Convention 111 of 1958, which is part of our law, such differentiation should not be regarded as discrimination on any ground, whether listed or unlisted and arbitrary.

As explained recently in Farce about Eish and affirmative action the ILO Conventional provides that “[A]ny distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination”.

Employment Equity Act (EEA)

6.            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, 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, and birth or on any other arbitrary ground.

(2)          It is not unfair discrimination to-

(a)          take affirmative action measures consistent with the purpose of this Act; or

(b)          distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

11 – Burden of proof

(1)          If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination

(a)          did not take place as alleged; or

(b)          is rational and is not unfair, or is otherwise justifiable.

(2)          If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:

(a)          the conduct complained of is not rational;

(b)          the conduct complained of amounts to discrimination; and

(c)           the discrimination is unfair.

Listed ground

If a male applicant who is refused a job with the  dance group and complains about being ‘discriminated’ against on the listed ground of gender, then the management would have to concede that the ‘differentiation’ did take place, but should not have too much of a problem in proving that the refusal was

  • rational;
  • not unfair, or
  • otherwise justifiable.

Unlisted arbitrary ground

A woman who complains about being discriminated against on the arbitrary ground of height would have to prove all the following

  • Irrational conduct;
  • Discrimination; and
  • Unfairness.

By applying the ILO Convention 111 together with the Employment Equity Act (EEA) it is highly unlikely that either complainant will succeed in proving ‘unfair discrimination’.

Inherent requirements of the dancers

In reality in both instances the inherent requirements the dancer’s job trumps any individual rights of the job applicants.

Automatically unfair dismissal

What would happen if a dancer has a sudden growth spurt and becomes too tall, or undergoes a sex change and is then dismissed?     Would that be regarded as an automatically unfair dismissal?

In terms of s 187 of the Labour Relations Act 66 of 1995 (LRA) a dismissal is automatically unfair if  the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to gender, sex or sexual orientation.

But s 187(2))(a) provides that despite such an event

“dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job”.

The law regarding the onus of proof in such circumstances is reasonably well settled but it would seem that on any test it could be regarded as an inherent requirement of the dancer’s job to be a female and fall within the required height range, more particularly to retain the authenticity of the dance group.

In this regard see the recent Labour Court judgment of acting justice Sean Snyman in Heath v A & N Paneelkloppers  (JS932/2012) [2014] ZALCJHB 343 (9 September 2014).

Extract with footnotes omitted

Reason for the dismissal

[41] Having accepted that the applicant was indeed dismissed by the respondent on 1 February 2012, it must next be determined what the reason for this dismissal was, and in particular, whether there was a sufficient nexus between the dismissal of the applicant and the fact that she was pregnant, in order to establish the existence of an automatic unfair dismissal.   In this regard, section 187(1) (e) of the LRA reads:

‘A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is ….the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy.’

[42] In SACWU and Others v Afrox Ltd, the Court, in dealing with an automatic unfair dismissal in terms of section 187(1) (a) said the following:

‘The enquiry into the reason for the dismissal is an objective one, where the employer’s motive for the dismissal will merely be one of a number of factors to be considered.   This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here …   The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair.   If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the ‘main’ or ‘dominant’, or ‘proximate’, or ‘most likely’ cause of the dismissal.   There are no hard and fast rules to determine the question of legal causation ….I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases…’

The same principles would clearly apply to a determination of whether a dismissal is automatically unfair in terms of section 187(1) (e).

[43] The Court in Kroukam v SA Airlink (Pty) Ltd also dealt with the issue of how it must be determined whether a dismissal is indeed automatically unfair (the Court was dealing with a dismissal in terms of section 187(1) (d)).   Firstly, Zondo JP (as he then was) said:

‘…   I am of the view that, where, as in this case, the reason or reasons for the dismissal of an employee comprise one or more reasons that would render the dismissal automatically unfair and one or more reasons that would not render the dismissal automatically unfair but the reason or reasons that would render the dismissal automatically unfair can be said to be the dominant reason or reasons, the dismissal is automatically unfair.’

And in the same judgment Davis JA said:

‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place.   It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in s 187 for constituting an automatically unfair dismissal.

The further question then arises as to the approach to the evidence led by the respective parties.   The answer can be illustrated by way of the following example: Assume that an employee can show that she was pregnant and dismissed upon the employer gaining knowledge thereof.   The court would examine whether, upon an evaluation of all the evidence, pregnancy was the ‘dominant’ or most likely cause of the dismissal.’

[44] The example provided by Davis JA in Kroukam as set out above is quite apt in casu.   Most certainly, the conduct which led to the dismissal of the applicant followed almost immediately upon her week long absence, resulting from pregnancy complications and Kuhn then (on his own version) becoming aware of her pregnancy.   This certainly would be sufficient cause to investigate whether pregnancy was the most likely cause of the dismissal of the applicant and will now conduct such investigation, by evaluating the evidence as a whole.