Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018)

Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018)

The court found that the complainants compared themselves to other pregnant employees who were given alternative employment, not to non-pregnant employees. The differentiation was based on skills and availability of alternative positions, not on pregnancy itself. Therefore, the treatment did not constitute discrimination on the ground of pregnancy. The commissioner applied the incorrect test for discrimination and exceeded her powers by ordering the employer to amend its policy, which was not challenged. There is no absolute duty on the employer to create alternative positions for pregnant employees if none exist; the employer acted lawfully and in accordance with its policy.

Citation
[2018] ZALCJHB 276
Parties
Applicant: Impala Platinum Ltd; Respondent: Jonase, Nomakhumsha Elise; Respondent: Tikane, Mary; Respondent: CCMA; Respondent: E Hlongwane N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2018
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 complainants.
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

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Impala Platinum Ltd

Applicant

Jonase, Nomakhumsha Elise

Respondent

Tikane, Mary

Respondent

CCMA

Respondent

E Hlongwane 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 applied the correct test for discrimination.
  3. 3 Whether the commissioner exceeded her powers by ordering amendment of the employer's policy.

Ratio Decidendi

The court found that the complainants compared themselves to other pregnant employees who were given alternative employment, not to non-pregnant employees. The differentiation was based on skills and availability of alternative positions, not on pregnancy itself. Therefore, the treatment did not constitute discrimination on the ground of pregnancy. The commissioner applied the incorrect test for discrimination and exceeded her powers by ordering the employer to amend its policy, which was not challenged. There is no absolute duty on the employer to create alternative positions for pregnant employees if 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 complainants.

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.