Impala Platinum Ltd v Jonase and Others (J698/15) [2017] ZALCCT 39; (2017) 38 ILJ 2754 (LC) (24 August 2017)

Impala Platinum Ltd v Jonase and Others (J698/15) [2017] ZALCCT 39; (2017) 38 ILJ 2754 (LC) (24 August 2017)

The court found that the complainants failed to establish discrimination on the ground of pregnancy, as their comparator was other pregnant employees who were accommodated in alternative positions due to their skills. The differentiation was not based on pregnancy but on the availability of suitable alternative positions. The commissioner applied the incorrect test for discrimination and exceeded her powers by ordering the employer to amend its policy, which was not challenged by the complainants. There is no absolute duty on the employer to create alternative positions for pregnant employees where none exist; the employer acted lawfully and in accordance with its policy.

Citation
[2017] ZALCCT 39
Parties
Appellant: Impala Platinum Ltd; Respondent: Nomakhumsha Elise Jonase; Respondent: Mary Tikane; Respondent: CCMA; Respondent: E Hlungwane N.O.
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
24 August 2017
Case Number
J698/15
Procedural Posture
Civil Appeal / Appeal Against CCMA Arbitration Award Under S 10(8) of the Employment Equity Act
Outcome
Appeal upheld; arbitration award set aside; declaration that the employer did not unfairly discriminate against the respondents.
Judges
A Steenkamp
Legal Topics
Employment Equity Act, Unfair Discrimination, Pregnancy Discrimination, Arbitration Award Review
Labour Law Employment Equity Act Unfair Discrimination Pregnancy Discrimination Arbitration Award Review

Case Brief

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Parties

Impala Platinum Ltd

Appellant

Nomakhumsha Elise Jonase

Respondent

Mary Tikane

Respondent

CCMA

Respondent

E Hlungwane N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal Against CCMA Arbitration Award Under S 10(8) of the Employment Equity Act

Legal Issues

  1. 1 Whether the employer unfairly discriminated against the complainants on the ground of pregnancy.
  2. 2 Whether the CCMA commissioner exceeded her powers by ordering the employer to amend its policy.
  3. 3 Whether there is an absolute duty on the employer to find alternative employment for pregnant employees.

Ratio Decidendi

The court found that the complainants failed to establish discrimination on the ground of pregnancy, as their comparator was other pregnant employees who were accommodated in alternative positions due to their skills. The differentiation was not based on pregnancy but on the availability of suitable alternative positions. The commissioner applied the incorrect test for discrimination and exceeded her powers by ordering the employer to amend its policy, which was not challenged by the complainants. There is no absolute duty on the employer to create alternative positions for pregnant employees where none exist; the employer acted lawfully and in accordance with its policy.

Court Disposition

Appeal upheld; arbitration award set aside; declaration that the employer did not unfairly discriminate against the respondents.

Orders

  • The appeal in terms of s 10(8) of the Employment Equity Act is upheld.
  • The arbitration award of the fourth respondent, Commissioner E Hlungwane, dated 25 March 2015 is set aside.