The consequences for any employer guilty of racially discriminatory practices are severe. In a recent Labour Court case which is discussed in full below, an employer was held to have unfairly determined an employee’s pay on the basis of race, and to have unfairly dismissed her for exercising her right to refer the practice to a bargaining council for conciliation. The Court, commenting that such conduct “calls for a high sanction”, awarded the employee compensation of 20 months’ salary, plus the differential in salary for a year, plus the costs of the claim.
In the case of Mutale v Lorcom Twenty Two CC a black secretary was tasked to interview candidates for the position of Girl Friday. She was instructed to offer all black candidates a set salary lower than all white candidates who would be paid whatever amount they requested. The instruction resulted in the employee reflecting upon her own position and this left her feeling deeply hurt. She then realised that she had also been hired at the set salary rate offered to black candidates on commencement of her employment, despite the fact that she had requested more in her curriculum vitae. To make matters worse, although she held a degree, a non-degreed, white, female colleague in the same position as herself was earning more than her. She took this issue up with her employer, who could give her no reasonable explanation for this discrepancy. She was then given a series of warnings for no good reason before finally being dismissed. She claimed that she had been dismissed for threatening to take her complaints to the Department of Labour.
The court stated that the onus or the burden to prove that she had been discriminated against on the basis of her race was hers to prove. The court could not just assume that because she was black that white persons were being treated more favourably. It was held that none of the numerous complaints about the employee’s conduct warranted her being dismissed. It was more probable that the employee’s claim that she had been paid less than the other white employees because of her race was the reason.
The court had the following to say about the employer’s conduct – The employer had realised her intentions to take issue with her employer’s conduct, and had attempted to indict her through trumped up charges of misconduct. The Court held the employer had used race as a yardstick to determine the salary range to be offered to candidates for the position of the post of Girl Friday. The court held that the employee was genuinely concerned that her own salary was computed on the basis of her race. When the employee took issue with the racially based salary computation of the employer’s employees, Mrs Smith (employer) reacted to it and concocted an exit mechanism for her from the employment. Mrs Smith (the employer) would decide what increment and when to give it to the employee. The computation of the employee’s salary was based on arbitrary grounds. The employee was entitled to refer an unfair labour practice dispute pertaining to the computation of her salary to the relevant bargaining council.
The court held that discrimination of an employee on the grounds of race or other arbitrary grounds has no place in employment practices even apart from the fact that it is unlawful.
The size of the award serves as a hefty reminder to all those employers who may still be behaving as though they were in apartheid times.
In previous cases the courts have had the following to say about racial discrimination –
In Mahlangu v Amplats Development Centre the labour court commented on racial discrimination and it said: Perceptions of racial discrimination in the employment environment, endemic in the aftermath of the apartheid era, are not uncommon and are frequently justified. Those are causes which, if proved and established upon application of the relevant legal principles, will justify the award of the maximum relief which the Labour Relations Act 1995, recognizing the absolute unacceptability of that form of conduct on the part of employers, prescribes. A phenomenon of not infrequent occurrence, although perhaps equally understandable in the historical context, is a hyper sensitivity to a perceived state of affairs in which, upon objective analysis, the true facts are distorted.”
Employers please ensure that all your employment practices are recorded, transparent, and fair. Racial discrimination, whether it be in the employment field or anywhere else, will not be tolerated and Employers who do not heed this will PAY heavily!