1. Labour law – ARR224 Caselaw – Employment Equity Act

2. Prescribed material Study: Ntai & others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LC) Leonard Dingler Employees Representative Council v Leonard Dingler (Pty) Ltd & others (1998) 19 ILJ 285 (LC) Germishuys v Upington Municipality (2000) 21 ILJ 2439 (LC) Swart v Mr Video (Pty) Ltd (1998) 19 ILJ 1315 (CCMA) Langemaat v Minister of Safety and Security & others 1998 (4) BCLR 444 (T ) Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC) Datt v Gunnebo Industries (Pty) Ltd (unreported, LC case no JS355/07, 20 February 2009) De Beer v SA Export Connection CC t/a Global Paws (2008) 29 ILJ 347 (LC) Potgieter v National Commissioner of the SAPS & another (2009) 30 ILJ 1322 (LC) Crotz v Worcester Transitional Local Council (2001) 22 ILJ 750 (CCMA) Coetzer & others v Minister of Safety and Security (2003) 2 BLLR 173 Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) Dudley v City of Cape Town (2004) 25 ILJ 991; 2004 (8) BCLR 805

3. Caselaw - EEA (Unfair discrimination I) Ntai & Others v SA Breweries Ltd o2 white trainers had higher income than 3 black trainers. oOnus on applicant to prove that discrimination on unacceptable ground took place. oApplicant could not prove the allegation of ‘arbitrary grounds’. oE/r proved sufficient reasons, e.g. merit increases and seniority. oNo unfair discrimination.

4. Caselaw - EEA (Unfair discrimination II) Woolworths v Whitehead oJob offered to woman. Could not relocate to Cape Town. Later on offered job and was able to relocate. Was pregnant however. Appoint her only on fixed-term contract and offered permanent position to someone else. oCourt found that e/r had rational economic reasons (continuity). Also that e/e could not prove that she would have been appointed was it not for the pregnancy.

5. Caselaw - EEA (Unfair discrimination III) Leonard Dingler oE/r had 3 different funds: Staff benefit fund (White monthly); Pension fund (Black weekly); Provident fund (Black monthly) oCourt found indirect discrimination based on race oUnfair? Look at effect of discrimination and whether it was reprehensible in community’s opinion? oOnus on e/r. oUnfair discrimination

6. Caselaw - EEA (Unfair discrimination IV) Coetzer v Minister of Safety and Security oBomb squad of SAPS did not have own EEP. White male inspectors refused promotion on basis of AA. oCourt found no specific plan for AA and therefore non- promotion to captain amounts to unfair discriminaiton.

7. Caselaw - EEA (Unfair discrimination V) Germishuys v Upington Municipality oWhite male was not appointed. Black male was appointed. White male alleged unfair discrimination. oCourt looked at AA policy, interviews conducted, advertisement and competency tests. oWhite male made presumptions regarding his own competency. Black male was better. oNo unfair discrimination.

8. Caselaw - EEA (Unfair discrimination VI) Swart v Mr Video oDid not want to appoint older person because he feared that he/she would not accept instructions from younger person. oCCMA found that age is not determinative of capability. oUnfair discrimination.

9. Caselaw - EEA (Unfair discrimination VII) Langemaat v Minister of Safety and Security oMedical aid refused that life-partner be registered as dependant. oCourt found that a dependant relies on other for maintenance. oUnfair discrimination.

10. Caselaw - EEA (Unfair discrimination VIII) Evans v Japanese School of Jhb oForced to retire before agreed retirement age. oCourt found no retirement policy. oUnfair discrimination based on age.

11. Caselaw - EEA (Unfair discrimination IX) Datt v Gunnebo Industries oDismissed by second manager after having been allowed by first manager to work beyond normal retirement age (ito agreement). oCourt found that agreement with first manager gave rise to new terms. oAutomatically unfair.

12. Caselaw - EEA (Unfair discrimination X) De Beer v SA Export Connection oAppointed in permanent position. Pregnant soon thereafter. Small business which would be influenced by this. Agreement with e/r to return a month after birth. Twins. Request for further month. Dismissed. oCourt found unfair discrimination based on reasons related to pregnancy. BCEA affords more leave.

13. Caselaw - EEA (Unfair discrimination XI) Potgieter v National Commissioner of the SAPS oApplicant laid charges of sexual harassment. Resigned due to stress. Claimed that employer failed to comply with sect 60 of EEA. oCourt found that in order to hold e/r liable:  One of employees in workplace.  Unfair discrimination.  Failed to take reasonable steps. oE/r dealt with it in adequate manner.

14. Caselaw - EEA (Affirmative action I) Ntai & Others v SA Breweries Ltd o2 white trainers had higher income than 3 black trainers oAA does not afford an individual right but is only a ‘shield’ against unfair discrimination

15. Caselaw - EEA (Affirmative action II) Coetzer vir Minister of Safety and Security oAA imperative must be balanced with constitutional imperative: SAPS must still discharge responsibilities (good bomb squad) oIf there is no AA-plan, AA can not be used as shield against unfair discrimination

16. Caselaw - EEA (Affirmative action III) Crotz v Worcester Transitional Local Council oNobody qualifies. Appoints other person. Allegation of unfair discrimination. oCourt found that e/r has prerogative. oHowever, e/r had no EEP. oUnfair discrimination.

17. Caselaw - EEA (Affirmative action IV) Harmse v City of Cape Town oSect 20(1) & (2), EEA as a whole and Constitution. EE-plan may create legitimate expectation.

18. Caselaw - EEA (Affirmative action V) Harmse v City of Cape Town oIndividual employee can’t enforce AA-claim i.t.o. plan. Only an enforcement issue. oLilian Dudley v City of Cape Town and Ivan Toms: Failure to give designated groups preference (failure to appoint i.r.o. AA) does not constitute unfair discrimination. Harmse wrong.