The Labour Relations Act (LRA) makes it perfectly clear in section 187(1)(f) that a dismissal is automatically unfair 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 … gender, sex (and) sexual orientation”.
Automatically unfair dismissals are the workplace equivalent of a heinous crime; very unfair dismissals if you like. Automatically unfair dismissals are considered to be so deplorable that they have a maximum compensation threshold of twenty four months remuneration versus 12 months compensation for ordinary unfair dismissals.
In Quinton Atkins v Datacentrix (Pty) Ltd [JS02/07], the Labour Court was called upon to review a dismissal by an employer of an employee who had informed the employer that he wanted to undergo a gender re-assignment process (sex change).
After an offer of employment had been made to the employee, which he accepted, he informed his new employer of his sex change plans. The employer was less than pleased with this news, and deemed the employee to have committed an act of gross misconduct in advising the employer of his sex change intentions during his employment interview. The employee was dismissed 24 hours prior to commencing his employment with the Respondent.
More precisely, the employer decided that the employee’s non-disclosure amounted to a repudiation of the employment contract, which it accepted as they no longer required his services.
Fortunately for the employee, he had not resigned from his previous place of work at the time, and therefore continued his employment with that employer.
However, he did refer his dismissal on grounds of his planned sex change to the CCMA and ultimately the Labour Court on grounds that, inter alia, his dismissal was automatically unfair and amounted to unfair discrimination as provided for in the Employment Equity Act.
The Respondent argued that the employee did not divulge that he intended undergoing a gender re-classification process, when he had an opportunity to do so during his interview, and that this omission constituted a serious case of misrepresentation which amounted to dishonesty.
The Court held that the employer had not defended the case on the basis that it had discriminated against the employee fairly, but rather, that the employee had a duty to disclose his intentions to undergo a gender-reclassification process during his interview.
The Court concluded that the only inference that can be drawn from the facts is that the employer would not have employed the employee if he had disclosed his true intentions during the interview process. Continuing, the court held that “There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process.”
The employee was awarded compensation equivalent to five months remuneration as he had seamlessly continued employment with his previous employer.
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