What is unfair discrimination on an ‘arbitrary ground’?

The Employment Equity Amendment Act, No 47 of 2013 (EEAA) has introduced an amendment to s6 of the Employment Equity Act, No 55 of 1998 (EEA) – the listed grounds of discrimination. The EEAA prohibits unfair discrimination of an employee on any one or more of the listed grounds (for example race, gender, sex, disability, pregnancy, religion and HIV status) or on any other arbitrary ground.

But what does this mean?
Prior to the amendment of the EEA, where employees sought to establish unfair discrimination on an unlisted ground, they were required to illustrate that the basis upon which they allege unfair discrimination is analogous to a listed ground. In NUMSA & Others v Gabriels (Pty) Ltd [2002] 12 BLLR 1210 (LC), the Labour Court interpreted this to mean that the ground relied on must be clearly identified and it must be shown that it is ‘based on attributes or characteristics which have the potential to impair the fundamental human dignity of persons as human beings, or to affect them adversely in a comparable manner.

It has been said that the amendment was implemented to bring the EEA in line with the terminology used in s187(1)(f) of the Labour Relations Act, No 66 of 1995 (LRA). Section 187(1)(f) provides that discriminatory dismissals based on grounds similar to those listed in s6 of the EEAA are automatically unfair. The section also refers to the term ‘any arbitrary ground’. In light of this it is important to look at the terms ‘arbitrary ground’ in the context of s187(1)(f) of the LRA, so as to provide an understanding of how the courts may interpret this phrase in relation to s6(1) of the EEAA.  

In New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the respondent employee alleged that his dismissal was automatically unfair in that he was arbitrarily discriminated against due to his depression. The Labour Appeal Court held that the question when assessing whether discrimination has occurred on an ’arbitrary ground’ is the following – ’did the conduct of the appellant impair the dignity of the respondent; that is did the conduct of the appellant objectively analysed on the ground of the characteristics of the respondent, in this case depression, have the potential to impair the fundamental human dignity of respondent?’ The LAC found that the conduct of the employer constituted an egregious attack on the dignity of the employee and accordingly fell within the grounds set out in s187(1)(f) of the LRA.

Against this background, it seems that the inclusion of ‘any other arbitrary ground’ in s6(1) of the EEA does not widen the scope of the section's original application. The courts will, in all likelihood, apply the same test as is presently used in determining whether discrimination has occurred on a ground which is analogous to a listed ground, in order to determine whether discrimination has occurred on an arbitrary ground.