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Atkins v Datacentrix (Pty) Ltd (Labour Court case no. JS02/07 dated 02/12/2009.

Datacentrix offered Atkins a job as an IT technician. Soon after the interview, whilst Atkins was still working at his previous employer, Atkins informed Datacentrix that he was to undergo a sex change so that he could become a woman. Datacentrix was not impressed with their prospective incumbents intentions and decided to withdraw its offer claiming that Atkins had been dishonest and had failed to disclose material information. Atkins sued for an automatically unfair dismissal on the ground of sexual orientation. The company denied that it had dismissed Atkins for wanting to change his sex but rather that they had dismissed Atkins for dishonesty.

The court accepted that Atkins was a transsexual. It also accepted the fact that the only remedy should a person not wish to remain in betwixt the two was to undergo surgery. Luckily he had not yet resigned from his present employer. His present employer supported his decision to undergo the operation.

The court found that dismissing an employee simply because he was to undergo a sex change operation was clearly discrimination on the basis of gender. This was forbidden by both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998.

The court awarded Atkins five months’ salary as compensation.

Of importance here is that the court rejected Datacentrix’s argument that the applicant was obliged to disclose such information. The court will not support disclosure of information that is in direct conflict with an individual’s right to dignity and privacy.