Unfair Discrimination – What is the Burden of Proof?
In the recent reportable case of Sasol Chemical Operations (Pty) Ltd v CCMA and others (29 August 2018) ZALCJHB 2680/16 the Labour Court evaluated the evidentiary burden placed on employees who contend that they have been subjected to unfair discrimination during their employment. The employee referred a dispute to the CCMA wherein he alleged that his remuneration was disproportionate to the Grade in which he was employed by Sasol. The employee, in his referral form, made no mention of either an equal pay dispute or discrimination based on race and merely requested that his remuneration be corrected in line with his Grade.
During the arbitration proceedings, it transpired that the employee earned substantially less than a white co-employee, who held the same position and performed the same duties. In view of the evidence led the Commissioner considered the dispute to be an equal pay dispute, culminating in a claim of unfair discrimination based on race. Sasol in justifying the pay differentiation argued that the “white” employee had more experience.
Although the Commissioner accepted that the “white” employee had 7 to 8 years’ experience as opposed to the other employee who only had 3 years’ experience, he held that there was no justification for the differentiation in salary. The Commissioner then found that Sasol had unfairly discriminated against the employee and ordered Sasol to adjust the employee’s salary to be the same as that of his white colleague.
Sasol appealed the award in accordance with section 10(8) of the Employment Equity Act 55 of 1998, as amended (“the EEA”) and contended that the employee did not discharge the evidentiary burden contained in section 11 of the EEA. Section 11(1) of the EEA states “if unfair discrimination is alleged on a ground listed in section 6(1), the employer against who the allegation is made must provide, on a balance of probabilities that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair or is otherwise justifiable”.
The question before the Labour Court was accordingly whether a bare contention of unfair discrimination by an employee triggered the employer’s onus to establish a defence or whether the employee had to present a prima facie case of discrimination.
The Labour Court, in interpreting the meaning of “alleged” as contained in section 11 of the EEA, referred to Labour Relations Law: A Comprehensive Guide (6ed 2015), wherein the authors opined as follows:- “The term “alleged” has not been consistently interpreted by the courts. It must be presumed to mean something less than making out a prima facie case, as would be required in the ordinary course with the burden of proof is not reversed. However, the weight of authority indicates that it means more than an unsupported contention or mere accusation”. The Labour Court accordingly found that a mere allegation of unfair discrimination is not enough to discharge the burden and it does therefore not shift the onus to the employer.
In this case, a claim for unfair discrimination based on race was not advanced and the employee failed to establish any link between the difference in pay and his race. To that end, the Labour Court referred to Rustenburg Platinum Mine v Bester (2018) 39 ILJ 1503 where the Constitutional Court held that the Labour Appeal Court misdirected itself by upholding a case not advanced by the employee. As the Commissioner, in this case, relied on an “unarticulated complaint”, the award by the CCMA was set aside and replaced with one that Sasol did not unfairly discriminate against the employee.
In order to discharge the burden of proof, employees are accordingly required to articulate and substantiate more than a bare allegation. It is also clear that Commissioners of the CCMA should be wary of unnecessarily embarking on an interventionist approach, with the aim of substantiating a bare allegation, as this may indicate a reasonable apprehension of bias.