Contractual provision: Unlawful and unenforceable

2 Comments

1. 

   GilesFiles on February 8, 2016 at 11:08 am

   Reported:
   (2016) 37 ILJ 449 (LC)

2. 

   GilesFiles on December 23, 2016 at 10:26 am

   See also:
   Employment contracts and medical examinations: When does a refusal to submit justify dismissal?
   P.A.K. le Roux
   Contemporary Labour Law 26:5 December 2016 p 50

   Comment by P.A.K le Roux

   This decision constitutes a timely warning that employers cannot rely on clauses in contracts of employment in terms of which employees consent to being medically tested. Testing is only permitted if this falls within the scope of section 7 of the EEA.
   One criticism that can be levelled against the decision is that it does not indicate on what ground the discrimination was found to have occurred. The most obvious answer would be on the grounds of disability. The problem with this is that it was common cause that the employee was capable of doing her job, despite her condition. The Court’s argument does not seem to fit into one of the other listed grounds of discrimination, whether in terms of section 6 of the EEA or in terms of section 187(1)(f) of the LRA.
   The only possibility is that there was discrimination on an arbitrary ground. If so, given the debate in this regard, some discussion on the test for what constitutes an arbitrary ground would have been useful. The issue of the onus of proof as regulated in section 11 of the EEA should also have been considered.