Prof Darcy du Toit in his latest editorial Defending the indefensible?, first published by LexisNexis on IR Network [subscription required], has no hesitation in correctly declaring that discrimination is prohibited – ‘finish and klaar’.  To allow for legitimate types of differentiation among employees which may coincide with prohibited grounds of discrimination, Convention 111 states that discrimination is not an issue when:

  • measures are based on the inherent requirements of a particular job,
  • affirmative action measures are adopted, and
  • measures are dictated by state security.

‘This is the definition which South African courts should apply when dealing with unfair discrimination. Section 3(d) of the EEA states that the Act must be interpreted “in compliance with” Convention 111. And there is nothing in the Constitution which prevents courts from doing so, or requires them to interpret “discrimination” in a fuzzier way that would leave scope for “fair” discrimination on the grounds prohibited by Convention 111 or the EEA itself.

For this is the problem with treating the term “unfair” as an adjective limiting the meaning of “discrimination” rather than one describing the open-ended range of listed and unlisted grounds that are prohibited by section 6(1). Ultimately, it would allow individual judges to determine exceptions to the rule that discrimination (in contrast to permissible forms of differentiation) on prohibited grounds is simply not allowed.

Interestingly, the courts have had much less difficulty in dealing with automatically unfair dismissals based on prohibited grounds of discrimination. Here it has generally been accepted that dismissal on a prohibited ground (such as pregnancy) is “automatically” unfair in the sense of being absolutely impermissible. Why, then, the difficulty in applying the same principled approach to forms of “unfair” discrimination other than dismissal?

By way of exception, there have been some judgments that do lay a basis for more consistent jurisprudence in the future. For example, in HOSPERSA obo Venter v SA Nursing Council, [2006] 6 BLLR 558 (LC) at paras 30–32  dealing with a case of age discrimination, Steenkamp J concluded that the effect of section 6 of the EEA, interpreted in compliance with Convention 111, “is to prohibit age discrimination absolutely”.