Victor Biggar (“the Applicant”), was employed by the City of Johannesburg: Emergency Management Services (“the Respondent”), as a Fire Fighter Emergency Medical Technician based at the Brixton Fire Station from 2000.
The Applicant was the first black person to live in the Respondent’s housing apartments. During the residence period his family had been subjected to various cases of severe racism from his co-workers who also resided at the housing apartments.
The incidents of discrimination included that his family was not allowed to swim in the communal pool, his children were not allowed to play soccer in the complex, various other incidents of racial abuse and being called K***r.
The Applicant made numerous complaints about the treatment from his co-workers to various superiors including the station commander and requested to be transferred to another section of the department. Apart from the complaints the Applicant did not lodge a formal grievance against his co-workers.
Despite the Applicant’s complaints, the Respondent did not take the appropriate steps to sanction the wrongdoers and to prevent the continuation of racial discrimination, resulting in the Applicant eventually tendering his resignation.
The court considered the objects of the Employment Equity Act 55 of 1998, as amended (“EEA”), which are inter alia, to give effect to the constitutional guarantees of equality, to eliminate unfair discrimination at the workplace and to ensure implementation of employment equity to redress the effects of past discrimination.
Section 6 of the EEA prohibits unfair discrimination and section 5 of the EEA places an obligation on an employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in the workplace.
Section 60 of the EEA places an obligation on an Employer to take positive steps to curb discrimination at the workplace. Notwithstanding, the Respondent had failed to do so.
The court held that the Respondent unfairly discriminated against the Applicant on the ground of race and Respondent was ordered to pay to the Applicant 12 month’s compensation.
After this judgement the Respondent brought an application for leave to appeal to the Labour Appeal Court, which application was dismissed with costs.
An employer is obligated to address discrimination in the workplace and to take positive steps to eliminate discrimination, failing which the employer could incur significant liability.
Written by Simone Jansen van Rensburg and Pierre van der Merwe