Procedural Posture

The applicant filed a complaint of unfair discrimination when an offer of employment was rescinded after he announced his intention to undergo gender reassignment.

Facts

The applicant, an information technology technician, was offered a position as senior support engineer in writing and he accepted the position.  During his interview, the applicant did not reveal that he was undergoing gender reassignment.  After accepting the employment offer, he did inform his prospective employer of his intended transition. Thereupon the offer was revoked.  Datacentrix stated in writing: “We regard this omission as a serious case of misrepresentation which constitutes dishonesty.”

Issue

Whether Datacentrix’s actions constituted unfair dismissal on the grounds of gender, sex and/or sexual orientation within the meaning of the Employment Equity Act 55 of 1988 and the Labour Relations Act 66 of 1995.

Domestic Law

Constitution, section 9 (prohibiting discrimination on a number of specified grounds including sex and sexual orientation).

Employment Equity Act 55 of 1988, Section 6(1).

Labour Relations Act 66 of 1995, section 187 (providing that a dismissal is automatically unfair if the reason for the dismissal is any arbitrary ground, including but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility).

Reasoning of the Court

Datacentrix argued that the Labour Court did not have jurisdiction because it had terminated the employment agreement for failure to disclose a material fact during the interview.  This “misconduct” was a legitimate basis for termination.

The Court was unpersuaded by this account of the reason for the dismissal.  The Court stated: “The only inference that one can draw from the facts placed before this Court is that the respondent would not have employed the applicant in the first place had he disclosed his true intentions.  It looked in vain at common law to justify why it should terminate the applicant’s employment since it clearly has issues with the process that the applicant intended to undergo.”

According to Datacentrix, there was a duty on the applicant to disclose that he wished to have gender reassignment.  The Court considered and rejected the idea that there was such a legal duty to disclose.  Although it “might have been different had he been asked this question during the interview and had lied about it,” the Court found no legal duty for the applicant to have disclosed what his intentions were.

The Court further held that the discrimination fit “under both sex and gender” and that even if it did not “fit neatly under the two it is still covered under section 187(1)(f) which refers to various grounds of discrimination.”  The Court also drew attention to the element of gender, stating,  “The applicant wants to change his gender. The respondent has a problem with it. Once he undergoes the sex or gender process, he continues to remain an employee and continues to enjoy the protection afforded to him by the LRA, the EEA and Constitution. He does not become a less worthy human being.”

The Court found unfair dismissal and unlawful discrimination and ordered compensation and a written apology.

Quinton Atkins v. Datacentrix Ltd, Labour Court, South Africa (2 December 2009), (Full text of judgment, PDF)