When Discrimination Is Seen As Reasonable Discrimination in the workplace on the grounds of disability is prohibited under the Employment Equity Act. But theres a strict test involved in determining if such discrimination has taken placeThe question of what constitutes unfair discrimination in the workplace has emerged yet again at the labour court, this time in relation to disability. Its an area where many readers might think the answers would be obvious, given the laws strong view about discriminating against someone on the grounds of disability. The dispute here concerns Mandla Tshaya, an operator at African Explosives Ltd (AEL), who had applied for the job of technologist. When he didnt make it to the short list, he took the matter up with the labour court via the General Industries Workers Union of SA. There was no dispute that AEL had told Tshaya he hadnt got the job because of his severe speech impediment the result of what the court described as a serious facial deformity. The disability, according to AEL, would prevent him from being able to communicate with others, as the post required. Tshaya challenged this decision, saying he had the necessary qualifications and met the requirements of the position. According to him, the advert for the job did not say that it required communication with external stakeholders, and in his view excluding him from consideration amounted to unfair discrimination based on his disability. As the Employment Equity Act specifically mentions disability as a prohibited ground for discrimination, the outcome of the case, and the reasoning of the court, is important. Tshaya initially challenged the decision not to shortlist him at several internal meetings with AEL. Throughout these discussions AELs position was that he didnt qualify for the technologist position because of his speech impediment. However, he was instead promoted to the position of lead operator. Though he initially accepted the alternative position, he later raised a number of problems around the role, which he said negatively affected his health. Was communication essential for the technologists job? According to a representative of AEL, the companys technologists help with the development of products and it is essential that they are able to communicate effectively, both verbally and in writing. This is because technologists have to discuss requirements and specifications with suppliers. They also have to communicate with plant employees to ensure they understand the requirements from a manufacturing perspective, and they must be able to communicate with front-end users so products can be used safely. The dispute between Tshaya and AEL took place against the background of the Employment Equity Act, which says noone may unfairly discriminate against an employee because of their disability, among other grounds. But the law also says it isnt unfair discrimination to exclude someone on the basis of an inherent requirement of the job. The question was thus whether AEL would satisfy the court that the job really required the ability to communicate with others. A strict test The judge hearing the matter, Portia Nkutha-Nkontwana, said courts had previously found there was a strict test for deciding such issues, and that a mere legitimate commercial rationale will not be enough. In addition, the employer has to show it is impossible to accommodate the individual employee without imposing ... insurmountable operational difficulty. Nkutha-Nkontwana said the vacancy advertisement made clear that effective communication was a requisite for the position, and AELs evidence that it was pivotal for technologists to be able to communicate was not seriously challenged in court. Expert evidence made clear the extent of Tshayas speech disability. It was also clear that AEL, through constant discussions with the union did what was reasonably possible to accommodate Tshaya, even promoting him to the position of lead operator, a post that he, at least initially, gladly accepted. The judge concluded that due to his serious speech impediment, Tshaya was not in a position to perform the essential requirements of the technologist position, and that he had thus failed to make out a case to sustain a claim of unfair discrimination under the Employment Equity Act. (Source: Rickard, C. (2022) When Discrimination Is Seen As Reasonable.. Financial Mail. 1 September 2022. Available at https://www.businesslive.co.za/fm/opinion/in-good-faith/2022-09-01-carmel-rickard-when-discrimination-is-seenasreasonable/)

1. identify and discuss the dimensions of diversity which are evident in the case study.
2. Discuss the difference between fair discrimination and unfair discrimination, and explain why AELs treatment of Tshaya did not amount to unfair discrimination.
3. The dispute between Tshaya and AEL took place against the background of the Employment Equity Act. What is employment equity and how would an organisation like AEL go about implementing it? Discuss