In South Africa, allegations of unfair discrimination tend to have a familiar theme – often an employee having been discriminated against on the basis of being black, female, pregnant, etc. But every now and then a white male claims to have been on the receiving end of unfair discrimination. If one adds language and culture to the mix, it makes for interesting reading.
One such case is that of De Bruyn v Metorex (Pty)(Ltd) (2021 LAC) where an employee was dismissed, allegedly for not being a Chinese national or Chinese-speaking person.
The Labour Relations Act in section 187 declares that a dismissal is automatically unfair if, among others, 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, for example, race, ethnic and social origin, culture or language. The section provides further that a dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job.
The Employment Equity Act imposes a general prohibition on unfair discrimination on the same grounds mentioned in the Labour Relations Act, but states that “(i)t is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of the job”.
If a court finds that an employee had been dismissed unfairly based on a discriminatory reason, the affected employee can choose between claiming reinstatement with backpay, or compensation not exceeding 24 months’ remuneration.
The facts in Metorex
Mr de Bruyn was the chief operating officer (COO) of Metorex (Pty) Ltd, a company situated in South Africa with mining interests in the Democratic Republic of the Congo (DRC) and Zambia with the responsibility of managing the day-to-day operations of some of the mines. The company is Chinese owned. When the company started experiencing financial difficulties, the owners took a decision to replace the general managers at its mines with Chinese-speaking nationals. This was part of the implementation of the so-called silo or “Jinchuan model” in terms of which greater autonomy was to be given to the general managers at those mines and changing the role of staff at Metorex’s head office – where De Bruyn was based – from a day-to-day management role of those mines to a role where they were less directly involved. The reason given for the change was to ensure efficient communication between the general managers, the Chinese chief executive officer (CEO), and the Chinese banks and other shareholders in Hong Kong, given the serious adverse financial situation Metorex found itself in.
De Bruyn could not speak Chinese. Eventually, it became clear that his role as COO at Metorex’s head office had become redundant and he was retrenched.
Language vs operational requirements
De Bruyn approached the Labour Court complaining, amongst others, that he had been discriminated against because he was not a Chinese national or a Chinese speaking person and that this, therefore, amounted to an automatically unfairly dismissal.
Metorex conceded that De Bruyn would not have been retrenched if he was Chinese speaking. However, they argued that the discrimination was justified in the circumstances. The court accepted the legitimacy of the business rationale for appointing Chinese-speaking mine managers and a Chinese-speaking CEO.
De Bruyn lost on all counts with the Court finding that his dismissal was not automatically unfair because it was not language that lay at the basis of his dismissal, but the fact that the implementation of the new operating model had resulted in De Bruyn and others losing their jobs. The company’s decision to change the operating model was also found to have constituted a solid economic rationale.
On appeal, the Labour Appeal Court (LAC) agreed with the lower court: the main cause of De Bruyn’s dismissal was that his position had become redundant and could not solely be reduced to his not being Chinese.
What lessons can be taken from this case?
First, in our law protection against discrimination on the basis of race, gender, disability, etc. is not absolute but might be justifiable if a good reason for it exists. In De Bruyn’s case, replacing him with a Chinese-speaking individual was justified on operational grounds.
Second, to be successful with a claim based on unfair discrimination it is not sufficient for an employee simply to allege that he or she had been unfairly discriminated against on a prohibited ground. They first have to provide sufficient documentary or oral evidence to convince a court that they had been treated differently to someone else who is in a comparable position and that this was – at least on the face of it – based on one or more of the prohibited grounds. If such evidence cannot be produced, the employer is off the hook.
Third, even if an employee can prove that he or she has been discriminated against, an employer can have a second bite at the proverbial cherry: it can still produce evidence justifying the discrimination. Therefore, even if De Bruyn succeeded in proving that he had been discriminated against based on language, he would still have lost because the employer could provide a genuine operational reason for it.
The question arises whether there are other situations where an employer could justify discrimination based on operational grounds, for example, whether an employer may –
(a) Exclude all persons, except black, Xhosa-speaking persons, from being appointed as waiters at a restaurant with an African theme that serves African cuisine;
(b) Exclude men from being appointed to work in a shop that sells women’s brassieres;
(c) Exclude all persons, except Afrikaans-speaking persons, from working in the sales and marketing department of a company that publishes Afrikaans novels and magazines;
(d) Exclude persons older than the age of 60 from being appointed as a field guide for an outdoor adventure company where acute sensory ability and physical agility are required.
Some of the above scenarios are more controversial than others. So, what approach would the courts adopt in situations such as these? The answer can be found in the Metorex-case: The LAC confirmed that the relevant considerations include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which rights and interests of the victim of the discrimination have been affected, whether the discrimination has impaired the human dignity of the victim and whether less restrictive means are available to achieve the purpose of the discrimination.
Commercial rationale not enough
The LAC added that a mere legitimate commercial rationale would not be enough to justify discrimination. There must be a ‘’genuine and good faith belief that it [is] necessary for the fulfilment of a legitimate work-related purpose and [it] must be reasonably necessary for the accomplishment of that purpose”. In addition, the employer would have to show that it was “impossible to accommodate the individual employee without imposing undue hardship or insurmountable difficulty” to the employer.
The one thing that is clear about the above, is that justifying discrimination is seldom straightforward. It tends to be fraught with complexities and requires a fine balancing act.
Barney Jordaan and Jan Truter for www.labourwise.co.za