The meaning of "Arbitrary ground" in section 6 of the Employment Equity Act 55 of 1998

Abstract

With the certification of the Constitution of the Republic of South Africa, 1996 (hereinafter the Constitution), came a commitment to transform the country from the social ills that were present under the sovereignty of the apartheid government to an egalitarian society, which recognises the fundamental rights of all persons. This was to be done through substantive equality by considering the personal experiences and circumstances of the individuals and groups. The Constitution, thus, entrenches the right to equality in section 9 and the right to fair labour practices in section 23, which includes the right not to be subjected to unfair discrimination in the workplace. The Constitution further states in section 1(a) that the Republic of South Africa is founded upon the values of human dignity, the achievement of equality and advancement of human rights and freedoms. The Employment Equity Act 55 of 1998 (hereinafter the EEA) was enacted to give effect to the right to equality and to eradicate unfair discrimination in the working environment. The Act places a strict prohibition against all forms of direct or indirect unfair discrimination and allows a claimant to bring forth a claim for unfair discrimination on a ground that may not be listed in the provision, provided that the ground is analogous to the listed grounds. In 2014, the Employment Equity Amendment Act 47 of 2013 introduced the phrase "or any other arbitrary ground" after listing the prohibited grounds in section 6(1) of the EEA. This amendment has led to various interpretations since the Explanatory Memorandum to the amendments does not provide much clarity on the purpose of the particular amendment. The first possible interpretation of the amendment is that it creates a third ground of unfair discrimination. Secondly, the amendment may refer to the requirement of rationality. Thirdly, the amendment may be synonymous to "one or more grounds" or "unlisted grounds". This study investigates these possible interpretations against the background of the existing principles of the Constitutional Court. It indicates that the first interpretation cannot be accepted because unfair discrimination cannot be found solely on the basis of the ground being capricious or arbitrary. The ground must go further than just being arbitrary; it must have the potential to impair the fundamental human dignity of the complainant or affect them adversely in a comparably serious manner. The study then indicates that the second interpretation is rendered redundant as the enquiry on unfair discrimination already encompasses the rationality requirement. Therefore, the amendment can only be understood as being a synonym for unlisted grounds, and this is supported by the amendment in section 11 of the Act which differentiates between listed and arbitrary grounds, arbitrary being a synonym for unlisted grounds. This study draws attention to the significant role of human dignity in equality jurisprudence which is employed at various stages of the test to establish unfair discrimination. The determining factor of unfairness in this regard is the impact of the discrimination on the complainant or the affected group. The goal of the prohibition against unfair discrimination is to create a society wherein every person is granted equal dignity and treated with respect, irrespective of the social group they belong to. This study concludes that the amendment made to the EEA should be read as referring to the unlisted grounds. This means that the test for unfair discrimination based on an arbitrary ground remains the same – in addition to proving irrationality, the complainant must prove that there is impairment of human dignity.