Employee undergoing a sex change – is it any of the employer’s business?

Jun 24, 2010


In Atkins v Datacentrix (Pty) Ltd the applicant (‘the employee’) was
offered a position of IT technician by the respondent (‘the employer’),
which he accepted. After accepting the offer, but before his first day of
work, the employee informed the employer that he was in the process
of undergoing a ‘gender-reassignment process’ (sex change) from
male to female. The employer subsequently terminated his contract of
employment, arguing that the employee had omitted to mention this
fact during the interview process, which it believed constituted a
serious case of misrepresentation and which amounted to dishonesty.
The employee claimed that he had been automatically unfairly
dismissed and unfairly discriminated against.

Before the court the employer argued that this was a case of an (ordinary) unfair
dismissal. The reason for the dismissal was not related to the employee’s intended sex
change, but rather his failure to disclose a material fact.

The court held that the LRA’s definition of an employee did not distinguish between males
and females. A transsexual who therefore underwent a sex change would continue to
remain an employee and the prohibition against unfair discrimination would also still exist.
That the employee had been dismissed was not in dispute. What was in dispute was the
true reason for the dismissal. Section 187 placed the evidential burden on the employee to
produce evidence which was sufficient to raise a credible possibility that an automatically
unfair dismissal had taken place. The impression that the employer wanted to give the
court was that, if the employee had disclosed that he intended to undergo the operation,
he would not have been dismissed.

The court did not accept this. The court held that the only inference that could be drawn
from the facts placed before it was that the employer would have not employed the
employee in the first place had he disclosed this fact. The court held that it was not clear
why the employer contented that the employee had been dishonest when the employee in
fact never had a legal duty to inform the employer of his intention to undergo a sex
change. It was clear from the facts before the court that the dominant reason for the
employee’s dismissal was that the employer had not been happy with the employee’s
intended sex change. The employer had therefore failed to show that the reason for the
dismissal was not automatically unfair.

The court held that it had to send out a message to employers, who still had some issues
with sex changes operations, that such conduct would not be tolerated. In the result, the
dismissal was declared automatically unfair, and it was held that the employer had
unlawfully discriminated against the employee, with costs. The court held that it was just
and equitable to order the employer to pay the employee compensation in the amount of
R100 000.00.

June 2010

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