Raol Investments v Madlala  [2007 SCA]
9 October 2007

In the matter of Raol Investments v Madlala, the respondent was dismissed for assaulting his immediate supervisor. The respondent was aggrieved at what he considered to be unequal treatment, because some two years earlier he had himself been the victim of an assault, which had not resulted in his assailant being dismissed by the same employer.

Nugent J held that whilst a court must be vigilant to ensure that discrimination against an employee on the grounds of race or other arbitrary grounds does not  occur in employment practices, it must be wary of concluding too hastily that an employee has been discriminated against on grounds of race merely because disparity of treatment coincides with racial disparity.

The Labour Appeal Court’s reasoning, that because there was disparity of treatment that was not justified it followed automatically that the company discriminated against the respondent on the grounds of race, was held to be unsound.

Whether an employer has discriminated against an employee on the grounds of race (or on any other arbitrary ground) is a question of fact. Where the evidence establishes, as it does in this case, that the employer treated employees differently on grounds other than race, there is no scope to infer that the employee was discriminated against on the grounds of race, because the reason for the disparate treatment has been established to be something else. That the differential treatment was not justified is immaterial to the factual enquiry as to the reason that it occurred.

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