At the beginning of 2014, the Employment Equity Amendment Act 2013 (EEAA) became law. Section 6(1) of said Act – which contains the listed grounds according to which discrimination is considered to be unfair – was amended to include the wording “or on any other arbitrary ground”.

The Oxford English Dictionary (2003) defines “arbitrary” as “based on random choice or personal whim, rather than any reason or system”. Many who have attempted to take advantage of this addition to the EEA have relied on the dictionary definition of arbitrary however, as the case below shows, the definition of arbitrary grounds is not, in fact, very wide.

A case involving discrimination

In Chitsinde v Sol Plaatje University – (2018) 27 LC 6.12.3 also reported at [2018] 10 BLLR 1012 (LC) the applicant employee was retrenched by the National Institute of Higher Education (NIHE. He then unsuccessfully applied for two posts that the respondent had reserved for former NIHE employees.

The union, to which the applicant belonged, referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The allegation was that the employee had suffered discrimination because he was the only candidate who had been required to “write a test” during the interview process.

In the Labour Court, the applicant stated that this behaviour amounted to discrimination on an “arbitrary ground” as did the fact that he had a bad relationship with members of the interview panel. It was the university’s argument that the applicant had been asked to set out – in writing – how he saw his role in the positions that he had applied for. The employee had been given this opportunity as he had not performed well in the interview.

The Court noted that where unfair discrimination is alleged on an arbitrary ground, the complainant must prove that the conduct complained of amounted to discrimination and, if so, that it was irrational as well as unfair. The applicant’s credibility had been undermined because he had raised allegations of victimisation and bias when he testified. He had not highlighted these issues previously.

The Court held that, if anything, the applicant had been treated more favourably than the other candidates because he had been asked to supplement his oral interview in writing. This was entirely rational. He could not claim that he had suffered discrimination by being treated more favourably than other candidates. The applicant had, accordingly, failed to discharge the burden of proving that he had been unfairly discriminated against.

In the light of these findings, there was no need to inquire into whether the respondent had acted unfairly. The application was accordingly dismissed with costs.

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