Two Labour Court judgments this year have set new benchmarks regarding unfair discrimination and the protection of the rights of transgender employees, says a Financial Mail report.
Full Financial Mail report
Two labour court judgments have set new benchmarks regarding unfair discrimination and the protection of the rights of transgender employees.
Earlier this month, in the case Christine Ehlers vs Bohler Uddeholm Africa, Judge Ellem Francis ordered that the employee, Ehlers, be reinstated to the same position she had had at the time of her dismissal by the steel company.
Ehlers, who was undergoing gender reassignment surgery from male to female, had two run-ins with colleagues at work, one of whom called her “immoral” because of the sex-change operation.
She was dismissed after refusing to take the company’s offer of a freelance sales position.
The judge ordered that Ehlers be given back pay and benefits for the period since her dismissal. The company has to apologise to her and report back to the court in three months about steps taken to prevent similar unfair discrimination.
Francis was the judge in a similar case earlier this year — Atkins vs Datacentrix (Pty) Ltd — in which an employee, IT technician Quinton Atkins, claimed that a job offer made to him by Datacentrix was withdrawn when he told the company he intended to undergo gender reassignment surgery.
However, the company said the termination was for dishonesty, as Atkins had failed to inform it about the surgery when he was interviewed for the job.
Francis found Atkins had not been dishonest, as he was not asked about the surgery during his interview, and said that since it was not relevant to the employer Atkins had had no duty to disclose it. The judge said the termination of Atkins’s employment contract without a hearing was automatically unfair in that it discriminated against him on the basis of sex and gender.
Shepstone & Wylie employment law associate Raoul Kissun says the cases deal for the first time with transgender issues in the workplace and reveal that employers are not clear about how to deal with them. He says it was significant that the court found that gender was not relevant to the ability of Atkins to do the job of an IT technician.
In the Ehlers case, Francis found it “appalling” that the company had had an agreement with her that she wore male clothes when consulting with clients. “This is reminiscent of the dark ages or our most recent past where there were job reservations and certain jobs were reserved for white people only, and white males in particular … it is shocking that there are still perceptions that only males can do certain jobs,” he said.