, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
QUESTION 1
1. In Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others [2019] 1 BLLR 91 (LC), the Labour Court found that in an unfair
discrimination dispute the employee claiming discrimination based on race must produce
evidence to support his/her claim. Accordingly, the Court concluded that a mere allegation of
discrimination is not sufficient. Considering this judgment, critically discuss the approach
adopted by this and other South African courts in dealing with racism in the workplace.
The Evidentiary Threshold in Racism Claims: Analysing the Approach in Sasol Chemical
Operations v CCMA
The Labour Court's judgment in Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others [2019] 1 BLLR 91 (LC) provides a significant clarification
regarding the evidentiary burden borne by employees who allege racial discrimination in the
workplace. The court's finding that a "mere allegation" of discrimination is insufficient to trigger the
employer's onus under section 11 of the Employment Equity Act reflects a careful balancing of
competing interests: the imperative to eradicate workplace racism on the one hand, and the need to
prevent unsubstantiated accusations from undermining employment relationships on the other.
The Evidentiary Framework Under the Employment Equity Act
Section 6(1) of the Employment Equity Act 55 of 1998 prohibits unfair discrimination on listed
grounds including race, while section 6(4) specifically addresses pay differentiation between
employees performing substantially the same work. The burden of proof provisions in section 11
create a crucial distinction between listed and unlisted grounds: where discrimination is alleged on a
listed ground, the employer bears the onus to prove that discrimination did not occur or was
justifiable.¹
However, as the court in Sasol made clear, the term "alleged" in section 11 does not mean that a bare
assertion suffices. Judge Steenkamp emphasised that the employee must produce "evidence which is
sufficient to raise a credible possibility" that discrimination on a listed ground has occurred.² The
court explicitly rejected the proposition that a mere allegation is enough, stating that the employee
must provide "more than an unsupported contention or mere accusation."³
This approach is consistent with earlier authorities. In Kroukam v SA Airlink (Pty) Ltd, Davis JA
held that section 187 of the Labour Relations Act imposes an evidentiary burden on the employee "to
produce evidence which is sufficient to raise a credible possibility" of an automatically unfair
dismissal.⁴ Similarly, in Janda v First National Bank, the court required the employee to present
sufficient evidence "to cast doubt on the reason for the dismissal put forward by the employer"
before the burden shifted.⁵
¹ Employment Equity Act 55 of 1998, s 11(1).
² Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2019] 1 BLLR 91 (LC) para
18.
³ Sasol Chemical Operations para 20, citing Labour Relations Law: A Comprehensive Guide (2015).
⁴ Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) para 18.
⁵ Janda v First National Bank (2003) 24 ILJ 1718 (LC) para 17.
QUESTION 1
1. In Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others [2019] 1 BLLR 91 (LC), the Labour Court found that in an unfair
discrimination dispute the employee claiming discrimination based on race must produce
evidence to support his/her claim. Accordingly, the Court concluded that a mere allegation of
discrimination is not sufficient. Considering this judgment, critically discuss the approach
adopted by this and other South African courts in dealing with racism in the workplace.
The Evidentiary Threshold in Racism Claims: Analysing the Approach in Sasol Chemical
Operations v CCMA
The Labour Court's judgment in Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others [2019] 1 BLLR 91 (LC) provides a significant clarification
regarding the evidentiary burden borne by employees who allege racial discrimination in the
workplace. The court's finding that a "mere allegation" of discrimination is insufficient to trigger the
employer's onus under section 11 of the Employment Equity Act reflects a careful balancing of
competing interests: the imperative to eradicate workplace racism on the one hand, and the need to
prevent unsubstantiated accusations from undermining employment relationships on the other.
The Evidentiary Framework Under the Employment Equity Act
Section 6(1) of the Employment Equity Act 55 of 1998 prohibits unfair discrimination on listed
grounds including race, while section 6(4) specifically addresses pay differentiation between
employees performing substantially the same work. The burden of proof provisions in section 11
create a crucial distinction between listed and unlisted grounds: where discrimination is alleged on a
listed ground, the employer bears the onus to prove that discrimination did not occur or was
justifiable.¹
However, as the court in Sasol made clear, the term "alleged" in section 11 does not mean that a bare
assertion suffices. Judge Steenkamp emphasised that the employee must produce "evidence which is
sufficient to raise a credible possibility" that discrimination on a listed ground has occurred.² The
court explicitly rejected the proposition that a mere allegation is enough, stating that the employee
must provide "more than an unsupported contention or mere accusation."³
This approach is consistent with earlier authorities. In Kroukam v SA Airlink (Pty) Ltd, Davis JA
held that section 187 of the Labour Relations Act imposes an evidentiary burden on the employee "to
produce evidence which is sufficient to raise a credible possibility" of an automatically unfair
dismissal.⁴ Similarly, in Janda v First National Bank, the court required the employee to present
sufficient evidence "to cast doubt on the reason for the dismissal put forward by the employer"
before the burden shifted.⁵
¹ Employment Equity Act 55 of 1998, s 11(1).
² Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2019] 1 BLLR 91 (LC) para
18.
³ Sasol Chemical Operations para 20, citing Labour Relations Law: A Comprehensive Guide (2015).
⁴ Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) para 18.
⁵ Janda v First National Bank (2003) 24 ILJ 1718 (LC) para 17.
