Can the ability to speak a specific language or being of a specific nationality be an inherent requirement of a job?

In the recent case of De Bruyn vs Metorex Proprietary Limited [2021] ZALAC 12 the Labour Appeal Court (“the LAC”) grappled with, inter alia, whether a retrenchment was automatically unfair for the reason that the retrenched employee was discriminated against because he was either not a Chinese national or a Chinese speaking person.

Written By of Cowan-Harper-Madikizela Attorneys

The employee, De Bruyn, was the COO of a Johannesburg based company, Metorex (“the company”). During 2015 the company was taken over by Jinchuan Group International Resources Company Limited and two Chinese nationals were appointed as the acting CEO and Deputy CEO. Following this acquisition, the “Jinchuan model” was adopted by the company and as part of the model general managers at the company were replaced with Chinese speaking nationals. By September 2015 the COO position appeared to have become redundant. De Bruyn proposed that instead of being retrenched he should be appointed in the position of the Deputy CEO for the reason that he was a better candidate and had longer service at the company. This proposal was rejected and he was retrenched. De Bruyn then referred an automatically unfair dismissal alternatively an unfair dismissal dispute to the CCMA.

The legal basis for the dispute was in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) which states that a dismissal is automatically unfair if 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, race, ethnic and social origin, culture or language. This is however subject to the application of section 187(2)(a) of the LRA which provides that a dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job.

In determining whether the discriminatory job requirement fell within the ambit of section 187(2)(a) of the LRA, the LAC applied a proportionality enquiry. In that regard, the inherent requirement of the job must firstly be strictly construed (a mere legitimate commercial rationale will not be enough) and secondly it must be rationally connected to the performance of the job.

In this case, the company conceded that if De Bruyn was Chinese speaking then he would not have been retrenched and perhaps would have been promoted to the position of Deputy CEO. As the South African Banks were threatening to call in its loans, the company required its CEO, Deputy CEO and Managers to be able to speak Chinese for the purpose of not only achieving effective communication between it and its employees but also to assist with securing alternative sources of funds from the company’s Chinese Shareholders and from Chinese financial institutions. In addition, thereto the acting CEO was more suitable for that position for the reason that he had more experience and knowledge of mining in accordance with the “Jinchuan model”. Accordingly, his appointment was not to “bump-out” the employee.

Given the circumstances, the LAC agreed with the Labour Court that the ability to speak Chinese had become an inherent requirement of the job for the position of the acting CEO and Deputy CEO. The LAC also held that the retention of De Bruyn to merely accommodate him would probably have imposed undue hardship and insurmountable difficulties on the company. Accordingly, the LAC dismissed the appeal and found that De Bruyn’s retrenchment was fair.

Critically, this case does not allow companies “free rein” to make the speaking of a specific language an inherent requirement of the job. When making a requirement inherent to the performance of a job, the circumstances faced by the company will largely dictate whether the requirement constitutes fair or unfair discrimination. It is clear from this LAC’s Judgment that a simple commercial explanation will not be sufficient to justify the implementation of a requirement of a job and that companies must seriously consider this before making such requirements.

Jessica Fox

Jessica Fox
Partner in Employment

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