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27 Jul 2021
BY Itayi Gwaunza AND Pareen Rogers

Requiring that an employee speaks a specific language or be of a specific nationality: unfair discrimination or an inherent requirement of the job?

Can an employer require its employees to speak a specific language or to be of a specific nationality as an inherent requirement of the job? Can an employee be dismissed for operational requirements if the employee is unable to speak that language or is not of a specific nationality? Would this be automatically unfair on the basis of unfair discrimination? This issue, along with several other claims, was what the Labour Appeal Court (“LAC”) had to decide in the matter of De Bruyn v Metorex Proprietary Limited.

Background

Mr De Bruyn was employed as chief operations officer (“COO”) at Johannesburg-based mining company Metorex. Metorex has a controlling interest in two mines in the Democratic Republic of the Congo (“DRC”) and a mine in Zambia.

The three mines were found to be largely unprofitable and, in 2015, Metorex’s day-to-day management was taken over by Jinchuan Group International Resources Co. Ltd, Metorex’s majority shareholder.

This resulted in Chinese nationals, Mr Dexin Chen and Mr Fugui Qiao, being appointed (in an acting basis) as CEO and deputy CEO of Metorex, respectively.

As part of the “Jinchuan model”, in June 2015, the general managers at the DRC and Zambia mines were replaced with Chinese speaking nationals. Staff at Metorex’s head office took on a more supervisory role.

By September 2015, it became apparent that the introduction of the new Jinchuan model could lead to the possibility that Mr De Bruyn’s role was redundant because the mine managers were reporting directly into Mr Qiao on a daily basis. Accordingly, Metorex notified Mr De Bruyn, in terms of the Labour Relations Act, 1995, of the possibility that he may be retrenched.

During the consultation process, Mr De Bruyn argued that his position had not become redundant. He proposed that, instead of retrenching him, he be “bumped” into Mr Qiao’s position as deputy CEO because (according to him) he was a better candidate and had longer service with Metorex than Mr Qiao. Metorex rejected Mr De Bruyn’s proposal and he was retrenched on 31 May 2016.

Mr De Bruyn referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration, alleging that his dismissal was automatically unfair, alternatively, that the dismissal was substantively and procedurally unfair. He also sought monetary compensation and a long term incentive bonus. He did not, however, seek reinstatement into his position.

Mr De Bruyn’s principal challenge to his dismissal was premised on his allegation that he was unfairly discriminated against by Metorex as he was not a Chinese national or a Chinese speaking person. The Labour Court found no merit in this allegation and it held that Mr De Bruyn’s dismissal was not automatically unfair. The Labour Court furthermore held that he was more likely to have been dismissed because his position had been made redundant.

Unsatisfied with the decision of the Labour Court, Mr De Bruyn brought an appeal to the LAC.

The Labour Appeal Court

Mr De Bruyn argued that his dismissal was automatically unfair and that he was dismissed based on race, ethnic and social origin, culture or language.

Metorex conceded that the main reason for Mr Qiao’s appointment related to language and culture and that a prima facie case of discrimination had been made out. Metorex argued that it was in dire economic and financial circumstances and that this position would have continued if the Jinchuan model had not been implemented, and if Mr Qiao had not been appointed. Accordingly, Metorex contended that its decision was not unfair and was reasonably justified even though there was discrimination.

In relation to the claim by Mr De Bruyn that his dismissal was automatically unfair, the LAC considered the relevant provisions of the LRA. The LRA provides that a dismissal is automatically unfair, among other cases, if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, ethnic and social origin, culture or language. However, a dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job.

The LAC referred to its own decision in the matter of TFD Network Africa (Pty) Ltd v Feris, where it held that the LRA imposes an evidential burden on the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It is then for the employer to prove the contrary by producing evidence to show that the reason for the dismissal did not constitute an automatically.

Regarding the issue of fairness, the LAC again referred to its reasoning in the TFD matter where it held as follows:

“Relevant considerations in regard to fairness and the inherent requirements of the job include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which rights and interests of the victim of the discrimination have been affected, whether the discrimination has impaired the human dignity of the victim and whether less restrictive means are available to achieve the purpose of the discrimination.”

The LAC went on conduct a proportionality test to see whether the defence of an inherent requirement of the job can be legitimately invoked. This test must be strictly construed and must be rationally connected to the performance of the job. An additional requirement imposed by the court in TFD is that the employer would have to show that it was “impossible to accommodate the individual employee without imposing undue hardship or unsurmountable difficulty.”

The legitimacy of the business rationale for appointing Chinese speaking mine managers and a Chinese speaking CEO could not really be rebutted by Mr De Bruyn. Efficient communication between the general managers, the CEO, and the Chinese banks and other shareholders in Hong Kong, was clearly an imperative given the severe adverse financial situation Metorex found itself in.

However, the issue did not simply turn on the fact that Mr Qiao was Chinese speaking – he also had experience and knowledge of mining and in following the Jinchuan model. The LAC found that, on the probabilities, Mr Qiao’s appointment was genuine, in good faith, that it was necessary for Metorex’s recovery, which was a legitimate purpose, and that his appointment (in the context of the implementation of the Jinchuan model) was necessary for the accomplishment of that purpose. In addition, Mr De Bruyn did not dispute the rationale and justification for introducing the Jinchuan model, neither did he dispute the fact that Metorex in fact retained other non-Chinese staff at both executive and operational levels at head office.

Mr De Bruyn’s appeal concerning his automatically unfair dismissal claim was dismissed, along with all of his other claims.

Commentary

The judgment indicates that not every unfair discrimination claim will find favour with South African courts. The test for justifying discrimination within the context of an automatically unfair dismissal claim, ie, based on the inherent requirements of the job, although construed strictly in conjunction with other requirements, does provide employers with a legitimate basis to dismiss employees. An employee’s complaints of discrimination will gain little, if any airtime, from South African courts if the courts deem the complaints to be unjustified. On the other hand, employers cannot use this as a basis to unfairly discriminate and the strict interpretation of the inherent requirements of the job test, will similarly keep employers in check.

Pareen Rogers
Employment | Executive
progers@ENSafrica.com
+27 82 788 0307

Itayi Gwaunza
Employment | Executive
igwaunza@ENSafrica.com
+27 82 708 0139