7 February 2008

The parity principle

Our law requires that employees who have committed acts of misconduct that are similar in nature should not be treated differently.

To do otherwise would be unfair. Our courts have generally accepted that where there is no rational and justifiable reason for the differentiation in such cases, to differentiate would be unfair and the guiding principle should be that like cases should be treated alike ("the parity principle").

The parity principle also applies to automatically unfair dismissals where the differentiation in treatment is as a result of any of the prescribed grounds set out in the Labour Relations Act such as race, gender, family responsibility and various other arbitrary grounds.

The Labour Court and Labour Appeal Court have in recent decisions suggested that if employees of one race are treated less favourably than employees of another race, and there is no rational and justifiable basis for the differentiation, i.e. the parity principle has not been applied, then not only may it be said that the differentiation is unfair but an inference arises that the differentiation was made on the ground of race. The employer will then be obliged not only to persuade the court that the differentiation was fair but also that it was not made on the basis of race. This has placed a significant burden on employers faced with such allegations.

This difficulty may now however have been resolved. In the recent case of Raol Investments (Pty) Ltd t/a Thekwini Toyota v Zwelinjane Madlala [2007] SCA 120 (RSA), the Supreme Court of Appeal rejected the notion that an inference of racial discrimination can be drawn simply because the reason for differentiation between employees of different races cannot be justified. The Court held that whether or not there was racial discrimination in such a case is a question of fact.

Accordingly, employers can now take some comfort in the knowledge that if they can provide a reason for the differentiation, the employee must establish that the reason given is "no more than a smokescreen to conceal a more sinister motive" namely, racial discrimination. In the past the employer would have had to prove this element.

The Supreme Court of Appeal has thus re-enforced the principle that differentiation of treatment between employees of different races does not necessary establish that a dismissal resulting from such differentiation has been made on the grounds of race. An employee who claims that the reason for his dismissal is on the ground of race must establish this as a fact. In the event that an employer has provided a basis for the differentiation which is something other than race, the employee must establish that the explanation given is not the true reason for the dismissal but one presented to cover up the act of discrimination.

Jacques van Wyk and Winile Madonsela

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