The applicant was employed permanently as a sales representative by the respondent. In May 2008, the applicant informed her employer that she wanted to undergo a gender reassignment process from male to female. Her employer did not oppose this, but requested that she continue dressing in male attire while at work. After a testicles removal surgery, the applicant’s physical characteristics changed from male to female. Subsequently, her relationship with other employees quickly deteriorated and she was ultimately dismissed from her employment.
Decision and Reasoning
The Court found that the applicant’s dismissal by the respondent was a result of the fact that she was a transsexual who was in the process of undergoing a sex change. The Court held that the applicant’s dismissal was subsequently unfair and that the employer had discriminated against her on the grounds of both her sex and gender, in violation of Article 9 of the South African Constitution and section 51.2 of the Labour Relations Act.
The Court ordered that the complainant be reinstated and that the employer take necessary actions to prevent similar practice with regards to other employees as well as tender a written apology to the applicant.
In its reasoning, the Court noted: “This case shows what discriminated people undergo daily in the workplace. It is a sad indictment to our society that despite our discriminatory past and all the non-discriminatory laws that we have in place, that discrimination in the workplace still thrives. The applicant is one such victim. Not only did she suffer discrimination and rejection in her family but was also subjected to ridicule by some of her colleagues. Some people believed that they had the right to call her names simply because she was different. This is a rather sad state of affairs. She excelled in her workplace. She was the best. I do not understand why her changed gender would now affect her performance.”