Are employers allowed to use language proficiency policies as a requisite for employment? A new e-hailing service called Wanatu has led to debate about this issue.
Cape Town - The new for Afrikaans speakers e-hailing company, Wanatu, has sparked debate about its exclusionary language policy for drivers, with labour law experts warning that the app was exhibiting exclusionary and discriminatory behaviour.
The app has been billed as the first Afrikaans e-hailing service, but unlike other players in the market like Uber and Bolt, Wanatu says it will only employ drivers who speak Afrikaans in their area of operation, Pretoria and Centurion.
The company claims it is trying to cater to South Africans who speak Afrikaans predominantly and who may have difficulty with speaking other languages.
In media reports, Wanatu's chief executive, Judith Van der Walt, says those who are not proficient in Afrikaans can still use the service as the application has an English translation button, but for drivers, speaking the language is a requirement. The app has made it no secret that it is pricier than the bigger players, targeting schools and airports shuttles.
IOL has made several attempts to provide Wanatu a right of reply, but they did not respond at the time of publication despite being given several days to respond.
Despite this, IOL reached out to several labour lawyers to discuss the practices by Wanatu and as it may be seen as a dog whistle.
Craig Kirchmann, an experienced attorney and labour law specialist at Kirchmann Inc, said the Wanatu matter was an interesting matter and it is not surprising that some are questioning the motives behind using language as a prerequisite for drivers to be employed.
He said at face value, making Afrikaans a prerequisite constitutes discrimination.
"The real issue is whether or not that discrimination is fair and/or can be justified," he said.
Kirchmann noted that "the discrimination" could be defended if it could be established that the need to speak Afrikaans was an inherent requirement of the job.
"While I do not have the benefit of having heard Wantu’s version, I very much doubt that it could be ever established that the need to speak Afrikaans is an inherent requirement of the job. This is particularly so when most of the communication and/or instruction is done by way of the app," he explained.
"Even if it could ever be established that it is an inherent requirement of the job (presumably because it can be established in some circumstances adequate communication is not possible if the driver is not Afrikaans speaking) that is not the end of the matter because that would probably apply in an exceptionally few number of cases," he added.
Kirchmann said the courts have made the point that if discrimination is ever to be justified, it must also be proportional and rational.
“This means that the extent of the discrimination must be proportional to the benefit derived therefrom."
Sandile July, the head of employment and Nonkosazana Nkosi, senior associate, at Werksmans Attorneys Inc scoured the Wanatu website. Both lawyers noted that one of Wanatu’s key value propositions, as stated on its website, is "restoring dignity in our communities and jobs in Afrikaans".
Nkosi and July said although the use and preservation of all languages was commendable, this had to be carefully balanced against the rights of others to use their languages while protecting the human dignity, and equality of all.
"While Wanatu enjoys the right to trade in a language of choice, this right must be balanced against the constitutional protection of everyone's right to use a language of their choosing. This, of course, also implicates the right to fair labour practices and the human dignity of those seeking employment with Wanatu," Nkosi and July explained.
The two attorneys said that Section 9(4) of the equality clause in the Constitution, and Section 6(1) of the Employment Equity Act 55 of 1998 (EEA), prohibit direct or indirect discrimination based on language.
"If Wanatu requires their drivers to speak Afrikaans as a precondition for employment, then such a recruitment/employment practice would be an offence of the equality clause and the EEA."
"The exclusion of drivers based on language could constitute unfair discrimination. The onus would then shift to Wanatu to demonstrate, on a balance of probabilities, that discriminating based on language in their recruitment/employment practises is rational and not unfair, or is otherwise justifiable," both lawyers added.
July and Nkosi said that while case law on unfair discrimination on the basis of language proficiency is sparse, there are a few cases where South Africa's courts have found that differentiation based on language proficiency was justifiable.
"In Stojce v University of KZN and Another (delivered on 07 September 2006), a candidate for a senior lecturer position was not appointed due to, among others, challenges experienced in communicating in the English language. The Labour Court found that, although the post for which the applicant was being assessed did not require English as part of the job description, it did require a level of fluency in English which would enable him to communicate effectively."
Both July and Nkosi state that the Stojce case established that language proficiency will be justifiable where such a requirement is inherently part of the job.
The law experts now argue that to establish inherency, Wanatu will have to show that employing Afrikaans-speaking drivers is rationally connected to the performance of the job.
"It should also be borne in mind that a legitimate commercial rationale is not sufficient to escape the clenches of the EEA. This is especially important given that Wanatu does cater to non-Afrikaans speaking users - the app has an English translation button," the lawyers added.
"The accommodation of a multilinguistic and multicultural market could undermine the argument that Afrikaans proficiency is indispensable to the job."
July and Nkosi both note that if Wanatu’s drivers are appointed as independent contractors rather than employees, the EEA would not apply.
However, they said that Wanatu's language proficiency practices would still be subject to constitutional scrutiny and could potentially be challenged under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
July and Nkosi both argue that Wanatu’s Afrikaans-centric model raises important questions about how language policies/practices in the workplace can coexist with the principles of equality and non-discrimination.
Related Topics: