Fairness and Unfair Discrimination. Two distinct Constitutional rights. (2024)

In one of my roles, I mark student assignments on various aspects of labour legislation and covering all relevant acts that govern the employment relationship. When asked, ‘what does fair labour practice mean?’ the answer is often that ‘it is treating people equally and not discriminating between employees’. This is not correct. Sometimes students say that ‘it is not having favourites’. The latter statement is closer to the truth. The fact that this question is so often incorrectly answered displays a fundamental misunderstanding of what separates fairness and unfair discrimination.

In the Constitution, you have a right to fair labour practice (section 23) and the right to equality and not to be unfairly discriminated against (section 9), which is drawn into the workplace by the Employment Equity Act, section 6.

In the labour relations sense (as expanded in the Labour Relations Act[1]), Fairness translates into the following: As an employee, I have the right to come to work and be told what the parameters are. I don’t want to be ambushed one day and told, ‘but really, you should have known that you shouldn’t have entered the Indaba Boardroom and I am giving you a final written warning for doing so’. You would have a grave sense of unfairness about this action. You would complain bitterly – how can you be punished for not knowing that you weren’t allowed to access this boardroom? ‘It is not fair’; you will mutter bitterly to yourself. This is substantive fairness.

Substantive fairness constitutes the rules, benchmarks, regulations and policies against which all behaviour and standards are measured consistently with all employees. It is the reason why an employer can take action against an employee. But those rules must be known and understood by all employees. Some rules are self-explanatory (I don’t need to tell you that you shouldn’t steal the company’s petty cash, as this is a common law principle and, in any event, stealing is against the law). Those same laws that regulate society in general are also applicable in the workplace – don’t steal, don’t murder anybody and don’t go around wielding an axe, threatening to harm people. And don’t steal the petty cash. And wear a mask.

However, other rules are more obscure and must be told to employees. You cannot have known that the Indaba Boardroom has confidential information displayed on the whiteboards that should not be accessed by anyone, other than the Board. You would have to be told specifically. Also, if some employees are allowed to enter and others not, based on nothing else but that they are the CEO’s pet employees, this would also be unfair. This is favouritism, inconsistent application of the rules, not unfair discrimination. However, if the CEO’s secretary is allowed to come and go in and out of the boardroom, there is a reason for it. It is not arbitrary. It is based on the fact that he is privy to confidential information and must go and take notes to minute the discussion around the confidential information.

However, there is a second leg to fairness – procedural fairness. I cannot simply put a final written warning onto your personnel file – you would react in the same way, if you discovered this a month later. You would mutter bitterly to yourself, ‘how could there be a warning, without you knowing about it? And why did they not consider the fact that I did not know about the boardroom rule?’ You would see it as grossly unfair.

This is why all procedure to be fair, (whether an informal discussion or a formal hearing) must follow three basic steps: 1. Notification that you have breached a rule; 2. A meeting of some sorts, where the main principle is the audi alteram partem rule (Latin made easy: hear both parties); and 3. An outcome based on what was said in the meeting in step 2. If your input is taken into consideration – i.e., that you didn’t know about the boardroom rule because HR forgot to give you the induction pack when you signed your contract, you may be given an oral warning: ‘ok we accept your explanation, but be careful, please don’t let it happen again’.

This in a nutshell is “fairness” in the labour relations sense – not arbitrary action, but a reason for the action: because you broke a known and understood rule, and a fair process, where you feel you can defend yourself and the outcome is based on airing both sides of the story.

Unfair discrimination on the other hand, is when the employer chooses against you for reasons that are not based on your ability to do the job – for arbitrary, socialized, pre-conceived notions that are not based on objective reasons. Your race has nothing to do with your ability to do the job, nor does your religion. Your language might, but only if the language an inherent job requirement – a Chinese speaking receptionist in a company that deals with Shanghai on a daily basis, for example. Unfair discrimination is also unfair because it is arbitrary, but it is not favouritism. Favouritism is based on whether the manager likes you. Unfair discrimination is based on a personal attribute, like your race, gender, religion etc. and is unfair because these are generally criteria that you cannot help and are often born with. Most importantly, it is unfair because the criteria used to choose against you has nothing to do with your ability to do the job. In both the fair labour practice and right to an environment free from any form of unfair discrimination, the action against you is arbitrary. One based on a rule that has not been established or communicated and the other based on criteria that are not objectively justified.

[1] 66 of 1995