On 24 August 2006, following a successful interview, the applicant, an information technology technician, was offered employment by the respondent employer. He accepted the offer in writing on 27 August 2006 and personally delivered his written acceptance. Prior to leaving the employer’s premises, the applicant informed the respondent that he intended to undergo a gender reassignment process to change his sex from male to female. On 30 August 2006, less than a day before the applicant was due to start working, the respondent terminated the applicant’s employment, stating that the applicant’s failure to disclose a material fact during the job interview and that this omission constituted a repudiation of the employment agreement.
Decision and Reasoning
The Court found that the principal reason for the applicant’s dismissal was that the respondent was unhappy that the applicant intended to undergo a gender-reassignment process. Accordingly, it found that the applicant has discharged the evidential burden of showing that discrimination under the Employment Equity Act, No. 55 and automatic unfair dismissal under section 187 of the Labour Relations Act had taken place. The Court further held that the applicant was under no legal duty to have informed the respondent that he wished to undergo a gender reassignment and therefore rejected the respondent’s argument that the complainant had been dishonest during his interview. Citing the Equality Clause in Section 9 of the South African Constitution, the Employment Equity Act, No. 55 and the Labour Relations Act, No. 66, the Court held that the definition of an employee did not distinguish between males and females. The applicant’s dismissal therefore amounted to unfair dismissal and found that the respondent had unlawfully and unfairly discriminated against the applicant on the basis of both sex and gender.
As a result, the Court ordered that the applicant be awarded damages; including compensation for unfair dismissal in the amount of five months’ salary and that the respondent take steps to prevent unfair discrimination or any similar practices with regards to other employees. The Court also directed the employer to tender a written apology to the applicant.