Discrimination is not always unfair

Section 9 of the constitution states that everyone is equal in the eyes of the law, and prohibits unfair discrimination. However, the dividing line between what is fair and unfair discrimination sometimes becomes a bit blurry as can be seen in the case of Phahla/ Seven on Kelner another – (2018) 27 CCMA 7.1.13.

Facts of the case:

• An employee resigned from a special school. After she had resigned, she was re-employed as a substitute teacher.

• The employee then applied for a permanent post at the school but did not get the job.

• As she had not been appointed, she claimed that she had been unfairly discriminated against on the basis that when she was, she had previously resigned and this was being used unfairly against her. As a result, she approached the Commission for Conciliation, Mediation and Arbitration (CCMA) and sought compensation.

• The employer stated that the school only employed former employees, who had resigned, under exceptional circumstances. This policy was in place to discourage teachers from taking early retirement. However, this policy did not ban former employees who had resigned from applying for jobs.

It was just one further matter that was used in the assessment for a position.

• The employee had led no evidence that the action of the employer had impacted on her dignity so she had not proven that she had been discriminated against.

• The case was therefore dismissed.

In order for something to be discriminatory, more and more arbitrators are asking the question as to whether the action impacted on the dignity of the employee. If it did not, or there is no evidence to support this, the discriminatory case normally fails.

Jonathan Goldberg is CEO of Global Business Solutions