In the recent case of Impala Platinum Ltd v Jonase and Others, the Labour Court (LC) dealt with an appeal against an unfair discrimination award, brought in terms of section 10(8) of the Employment Equity Act, 1998 (EEA). This followed an arbitration award by the Commission for Conciliation, Mediation and Arbitration (CCMA), which found that two pregnant employees had been unfairly discriminated against by Impala Platinum Limited (company).
The two complainants were amongst those moved to the surface and for whom the company could not find alternative employment. Of the 21 pregnant employees, only two had the requisite skills for the available administrative posts. The remaining employees were told to take their four months’ paid maternity leave with the option of unpaid maternity leave for up to six months. While the company was seeking alternative positions, the two complainants were moved to the AMCU offices on full pay for three months, despite them not doing any work for the company.
The two complainants then referred a dispute to the CCMA alleging unfair discrimination in terms of section 10 of the EEA, stating that they “…want to be treated fair like other pregnant employees”. The conciliation failed and the two referred the dispute to arbitration.
The commissioner found:
The commissioner found that the applicants were treated differently from other pregnant employees, concluding that the differentiation amounted to unfair discrimination. In addition, the commissioner found that the maternity policy is unfair as it discriminates against pregnant employees and that the Company had a responsibility to find alternative employment for the complainants, or to pay them.
The company appealed, contending that the commissioner erred in:
- finding that discrimination had been established;
- granting relief outside of her remit; and
- finding the company’s failure to secure suitable alternative employment for the two complainants was per se unfair discrimination.
The complainants had complained they had been treated differently from other pregnant employees, yet the commissioner simply found that the Company had discriminated against them because they were pregnant. This complaint was negated by their comparator, being other pregnant women. The LC found that the treatment of some pregnant women compared to other pregnant women simply cannot constitute discrimination based on pregnancy.
It was the lack of requisite skills that resulted in certain pregnant women being treated differently to other pregnant women, but those women were not treated differently by virtue of their pregnancy. The two complainants submitted that the true complaint was not about the alleged unfair treatment of certain women within the category of pregnant women, rather it was about the discriminatory treatment of pregnant women as opposed to employees who were not pregnant. The LC rejected this submission, stating that it was simply not borne out by the documents, evidence, arguments and facts that were before the commissioner.
The appeal was upheld and the arbitration awards were set aside.
Employers should not be shy to include provisions for suitable alternative employment for pregnant women in their policies, or to provide for situations where no suitable alternative is reasonably possible, such as those contemplated in this case. Employers should take pains to ensure however, that the differential treatment of these employees does not inherently discriminate against them.