The Labour Appeal Court has delivered a judgment dealing with the intersection between inherent requirements of the job and operational requirements.
The judgment dealt with a situation where the employer implemented a “Chinese model” and replaced South African employees with Chinese employees. Mr De Bruyn, one of the South African employees, claimed that his dismissal based on the fact that he was not Chinese, was discriminatory and automatically unfair.
The employer argued that the dismissal was fair and that it was an inherent requirement of the job for the employee to be Chinese.
In dealing with what an employer must establish when it claims that an attribute is an inherent requirement of the job, the LAC analysed the jurisprudence and found as follows at paragraph 29:
[29] This Court then held that the test whether a requirement was inherent or inescapable in the performance of the job is essentially a proportionality enquiry; because of the exceptional nature of the defence, the requirement must be strictly construed and a mere legitimate commercial rationale will not be enough; and that the requirement must be rationally connected to the performance of the job, in the sense that the requirement should have been adopted with a ‘’genuine and good faith belief that it was necessary for the fulfilment of a legitimate work–related purpose and must be reasonably necessary for the accomplishment of that purpose.”
The LAC reasoned as follows at paragraphs 33 to 35:
[33] Efficient communication between the general managers, the CEO, and the Chinese banks and other shareholders in Hong Kong, was clearly an imperative, given the seriously adverse financial situation Metorex found itself in. Chen explained in detail why Qiao was a more suitable candidate for the acting CEO position. It did not begin and end with the fact that Qiao was Chinese speaking. Qiao and Chen also had experience and knowledge of mining in accordance with the Jinchuan model. Qiao did not only act as deputy CEO, but effectively had to do the work of CEO after Chen had left South Africa. On the probabilities, his appointment (instead of the appellant) was genuine and in the belief, held in good faith, that it was necessary for the financial recovery of Metorex, which is a legitimate purpose, and that his appointment (in the context of the implementation of the Jinchuan model) was necessary for the accomplishment of that purpose.
[34] Qiao’s appointment as acting deputy CEO and subsequently as deputy CEO was genuine and its aim and purpose was not to “bump-out” the appellant or to displace him. The redundancy of the appellant’s position appears to have been a consequence, although not the purpose, of the implementation of the Jinchuan model and the appointment of the Chinese general managers at the mines. Qiao as deputy CEO may have taken over certain of the duties and responsibilities of the COO, but that was in addition to those, effectively, of the CEO.
[35] Chen had explained the need for a Chinese speaking CEO, not only to facilitate communication with the general managers, but more vitally, to facilitate the raising of finance with the Chinese shareholders, banks and financial institutions. The South African banks, which had been financing Metorex were threatening to call in their loans and Metorex was obliged to seek additional/alternative financing from its Chinese shareholders and from Chinese financial institutions.
The LAC therefore essentially found that speaking Chinese was part of the inherent requirements of the job, and that Mr De Bruyn’s dismissal was not based on unfair discrimination.
A copy of the full judgment can be viewed here:
De Bruyn vs Metorex
Very interesting, what if he could get an interpreter and look at non-Chinese sources of funding