Essence

Employee failing to prove an arbitrary ground after alleged pay discrimination claiming that he was paid less than a colleague who was re-appointed on a higher salary.

Decision

Nehawu obo Totyi v Airport Company SA (SOE) [2016] 9 BALR 1017 (CCMA) – 29 March 2016. Refused application.

Judges

J Gruss, Commissioner

Related books

Labour Relations Law – chapters X1 and XII

Significance

In employment related disputes it is incorrect to refer to fair or unfair discrimination despite the use of such language in the Constitution.  South Africa ratified the ILO Convention 111 in 1997 and so there are no general employer defences to alleged discrimination.  Differentiation is only permitted on specific grounds.

Reasons

Discussion by GilesFiles
This award correctly stresses the need to have regard to the ILO Convention 111 because it does not accept that there can be “fair discrimination” unlike our Constitution that refers to “unfair discrimination”.  This means that disputes relating to employment have to be dealt with in a different manner.
Quotations from judgment

Details of hearing and representation

[1]   The dispute was scheduled for arbitration in terms of section 10(6)(aA)(ii) of the Employment Equity Act 55 of 1998 as amended (“the EEA”).  The applicant, NEHAWU obo Luyanda Totyi was represented by Mr Maxaxa, a NEHAWU shop steward.  The respondent, Airport Company South Africa (SOE) was represented by Mr Monare, the respondent’s Group Specialist Employee Relations. 

The arbitration hearing was held on 15 March 2016 at the CCMA office in Port Elizabeth.  The parties agreed to submit written closing [arguments] on 22 March 2016.  The respondent submitted their written closing arguments on 18 March 2016 and the applicant’s their written closing arguments on 22 March 2016.

Issue to be decided

[2]   I am required to determine whether the respondent has unfairly discriminated against the applicant relating to a difference in terms and conditions of employment relating to another employee performing the same work or work of equal value, directly or indirectly based on any one or more grounds listed in in terms of section 6(1) of the EEA.

Background to the issues

[3]   The following were agreed as common cause facts between the parties at the commencement of the arbitration hearing:

3.1   The applicant commenced employment with the respondent as a security officer on 1 July 2009.

3.2   The applicant currently earns R7 567 per month.

3.3  The applicant alleged that the respondent has been discriminating against him on an arbitrary ground in that his colleague, Mandle Mapu who is also employed by the respondent as a security officer earns R8 641 per month.

3.4   The applicant and Mandle Mapu are both from the same race and gender and perform the same work.

3.5   The applicant alleges that Mr Mapu commenced employment with the respondent as a new employee during February 2015 and therefore has less service than him with the respondent.

3.6   The respondent submitted that Mr Mapu had previously been employed by the respondent in Cape Town and commenced employment in May 2008.  Mr Mapu resigned on 5 June 2014 in that he was unable to arrange a transfer to Port Elizabeth where his family resides.  A post became vacant in Port Elizabeth and Mr Mapu applied to be appointed.  He was interviewed and was re-appointed or re-enlisted in February 2015.  He was offered a salary not less than what he earned preceding his resignation.  Therefore he was appointed at a salary notch higher than what the Applicant earned.

3.7   The applicant seeks that his current salary be increased retrospectively to the date he referred his discrimination dispute to that what Mr Mapu currently earns.

Survey of evidence and argument

[4]   The applicant testified to the following effect.

4.1   That during March 2015, whilst he and his colleagues were having drinks in Motherwell they ended up talking about their salaries.  It was then that he became aware that Mr Mapu was earning more than him and when Mr Mapu was appointed in February 2015 he was appointed earning a salary of R8 000 per month.

4.2   He and Mr Mapu were performing the same work and it was unfair that he was earning less than Mr Mapu.

4.3   Under cross-examination, he accepted after being shown documentation that Mr Mapu initially commenced employment in Cape Town on 12 May 2008 and when he resigned Mr Mapu was earning R7 796 per month.

[5]   Ms Ncebakazi Mzwali testified for the respondent to the following effect.

5.1   She is employed by the respondent as a Senior HR Business Partner for the Coastal Airports.

5.2   She is familiar with the applicant’s case and when Mr Mapu resigned, she worked with Mr Mapu in Cape Town.  Before Mr Mapu resigned he applied for a transfer to Port Elizabeth in that his family needed his assistance in Port Elizabeth.  Mr Mapu did not have parents and his siblings needed his support.

5.3   Mr Mapu applied unsuccessfully twice for a transfer to Port Elizabeth.

5.4   During January/February 2015 posts became vacant in Port Elizabeth and Mr Mapu applied to be appointed.

5.5   They made two appointments, Mr Mapu met all the requirements for the post and he had experience in that he had previously worked for the respondent.  He was, therefore, appointed.

5.6   In determining at what salary level to appoint Mr Mapu they recognised Mr Mapu’s qualification, experience within the security industry, working experience with the Respondent, the fact that they would not be required to send Mr Mapu for specialised security training considering his employment history with the Respondent.

5.7   They also considered what he earned prior to him resigning in Cape Town.

5.8   Had Mr Mapu not have had the experience he had, they would have started him at the minimum salary notch.

5.9   The respondent placed value on the retention of skills.

Analysis of evidence and argument

[6]   One of the chief agendas of the Constitution is to establish a society that enjoys equal enjoyment of all rights and freedoms and that is free from unfair discrimination.  The Constitution furthermore aims to achieve the same freedom in the workplace, and in order to give effect to this ideal, has enacted the EEA.

[7]   Section 9(1) and (2) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law.  Equality includes the full and equal enjoyment of all rights and freedoms.  To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.

[8]   Section 9(3) of the Constitution further provides that the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.  No person may unfairly discriminate directly or indirectly against anyone on one or more grounds listed in subsection (3). 

National legislation must be enacted to prevent or prohibit unfair discrimination.  Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

[9]   Section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected.

[10]   In terms of ILO Convention 111 of which South Africa has ratified, the term “discrimination” includes any disti nction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

[11]   Section 5 of the EEA provides that every employee must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

[12]   Section 6(1) of the EEA provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, dignity, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.

[13]   Section 6(2) of the EEA further provides it is not unfair discrimination to take affirmative action measures consistent with the purpose of this Act or distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

[14]   Section 6(3) of the EEA also provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsection (1).

[15]   Section 6(4) of the EEA provides that a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1) is unfair discrimination.

[16]   Section 6(5) of the EEA provides that the Minister, after consultation with the commission, may prescribe the criteria and prescribe the methodology for assessing work of equal value contemplated in subsection (4).

[17]   Section 10(6)(aA) (ii) and (iii) of the EEA provides that if the dispute remains unresolved after conciliation an employee may refer the dispute to the CCMA for arbitration if the employee alleges unfair discrimination on the grounds of sexual harassment or in any other case, that employee earns less than the amount stated in the determination made by the Minister in terms of Section 6(3) of the Basic Conditions of Employment Act.

[18]   Section 10(8) of the EEA provides that a person affected by an award made by a Commissioner of the CCMA pursuant to a dispute contemplated in subsection (6)(aA) may appeal to the Labour Court against said award within 14 days of the date of the award, but the Labour Court, on good cause shown, may extend the period within which that person may appeal.

[19]   Section 11(1)(a) and (b) of the EEA provides that if unfair discrimination is alleged on the ground listed in section 6(1), the employer against whom the allegation is made must prove on a balance of probabilities that such discrimination did not take place as alleged or is rational and not unfair or is otherwise justifiable.  Section 11(2) also provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities that the conduct complained of is not rational, the conduct complained of amounts to discrimination and discrimination is unfair.

[20]   In Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC) [also reported at [2000] 3 BLLR 311 (LC) – Ed], the court also held that “The mere existence of disparate treatment of people .  .  .  is not discrimination .  .  .  unless the difference constitutes direct discrimination .  .  .”

[21]   In Ntai and others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) [also reported at [2001] 2 BLLR 186 (LC) – Ed], the court reiterated that a mere charge of discrimination will not suffice to establish a prima facie case, the court held that:

“Litigants who bring discrimination cases to the Labour Court and simply allege that there was discrimination on some or other arbitrary ground, without identifying such ground, would be well advised to take note that the mere arbitrary actions of an employer do not, as such, amount to discrimination within the accepted legal definition of the concept.”

[22]   The applicant has not identified an arbitrary ground on which he had been directly or indirectly discriminated on as it refers to employment practice.  In this case, I refer to the payment of wages.  All that he says is that it is unfair.

[23]   Van Niekerk J at (6) in the Mangena and others v Fila SA (Pty) Ltd [2009] 12 BLLR 1224 (LC) referred to the writing “Writing in ‘Essential Employment Discrimination Law’”, [sic] Landman suggests that to succeed in an equal pay claim, the claimant must establish that the unequal pay is caused by the employer discriminating on impermissible grounds. 

This suggests that a claimant in an equal pay claim must identify a comparator, an established [sic] that the work done by the chosen comparator is the same or similar work (this calls for a comparison that is not over-fastidious in the sense that difference that are infringed or unimportant are ignored) or where the claim is for one of equal pay for work of equal value, the claimant must establish that the job of the comparable and the claimant, while different equal value having regard to the required degree of skills, physical and mental effort, responsibility and other relevant factors. 

Assuming that this is done, the claimant is required to establish a link between the differentiation (being the difference in remuneration for the same work or work of equal value) and the list or analogous ground. 

If the causal link is established, section 11 of the EEA requires the employer to show that the discrimination is not unfair, ie it is for the employer to justify the discrimination that exists.

[24]   In Mbana v Shepstone and Wylie 2015 (6) BCLR 693 (CC) the complainant, Ms Mbana claimed an unfair discrimination, the Constitutional Court remarked that:

“.  .  .  she proffers no evidence to sustain this allegation .  .  .  She has similarly failed to demonstrate how the alleged unfair discrimination was based on an arbitrary ground .  .  .  Therefore, the claim of direct or indirect unfair discrimination based on race, social origin and an arbitrary ground has no prospect of success .  .  .”

[25]   The applicant has failed to identify and arbitrate ground [sic] and thereby his claim ought to be dismissed without further deliberation.  Nevertheless, the respondent’s reason why Mr Mapu earned more than the applicant is based on Mr Mapu’s experience and past employment history. 

Therefore, when they re-appointed him, they took into account his experience, qualifications and the fact that he need not have to undergo specialised training as would be expected of a new inexperienced recruit.

[26]   Regulation 2 to 7 of the Employment Equity Regulations, 2014, published on 1 August 2014 covers definition of work of equal value, criteria and the methodology for assessing work of equal value. 

Regulation 7(1)(a) to (g) provides that if employees perform work that is of equal value, a difference in terms and condition of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following grounds. 

The individual’s respective seniority or length of service, the individual’s respective qualification, ability, competence or potential above the minimal acceptable levels required for the performance of the job, the individual’s respective performance, quality or quality [sic] of work, provided that employees are equally subjected to the employer’s performance evaluation system, that the performance of a system is consistently applied. 

Where an employee is demoted as a result of organisational restructuring or for any other legitimate reason without a reduction in pay and fixing the employee’s salary to this level until the remuneration of employees in the same job reaches this level. 

Where an individual is employed temporarily in a position for purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and condition of employment. 

The existence of a shortage of relevant skills, or the market value in a particular job classification and any other relevant factor that is not unfair discrimination in terms of section 6(1).

[27]   Regulation 7(2) of the Employment Equity Regulation, 2014 further provides that a differentiation in that terms and conditions of employment based on one or more grounds listed in subsection (1) will be fair and rational if it is established, in accordance with section 11 of the EEA that its application is not biased against an employee or group of employees based on race, gender or disability or any other grounds listed in section 6(1) of the EEA and it is applied in a proportionate manner.

[28]   The Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value was published on 1 June 2015.  The object of this Code is to provide practical guidance to employers and employees on how to apply the principles of equal pay/remuneration for work of equal value in the workplaces. 

The Code refers to Article 3 of the ILO Equal Remuneration Convention 1951 (No 100) that requires

“measures shall be taken to promote object of appraisal of jobs on the bases of the work to be performed. 

While the Convention only applies to equal pay/remuneration for work of equal value between men and women, the need to conduct an objective appraisal of jobs is a necessary element of applying the principle in all context, in particular, to eliminate residual structural inequalities relating to legislate it and practical racial discrimination that applied in the labour markets in South Africa. 

In order to assess the value of the job for purposes of applying the principle of equal pay/remuneration for work of equal value, an objective assessment in accordance with relevant and appropriate criteria must be undertaken.

[29]   The basic criteria, used to evaluate the value of the job by an employee are:

29.1   The responsibility demanded of the work, including responsibility for people, finances and material.  This includes tasks that have an impact on who is accountable for delivery of enterprises organisational goals, for example, its profitability, financial soundness, market coverage and the health and safety of its clients.  It is important to consider the various types of responsibility associated with enterprises or organisations goals independently from the hierarchy level of the job or the number of employees it involves supervising.

29.2   The skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal.  This includes knowledge and skills which are required for a job.  What is important is not how these were acquired but rather that the content corresponds with the requirements of the job being evaluated.  Qualification and skills can be acquired in various ways including academic or vocational training certified by a diploma, paid work experience in the labour market, formal or informal training in the workplace and volunteer work.

29.3   Physical, mental and emotional effort required to perform the work.  This refers to the difficulty related to and the fatigue and tension caused by performing job tasks.  It is important not only to consider physical efforts but also take mental and psychological effort into consideration.

29.4   The assessment of working conditions may include an assessment of the physical environment, physiological conditions, time when and geographic location where the work is performed.

[30]   The respondent’s own remuneration policy provides that the Airport Company South Africa remunerates employees in accordance with the “value of the work” as defined by the Company in terms of capabilities ie competencies, technical skills and experience (input) and performance (output) at the various organisational levels.

[31]   I can find no fault with the respondent’s approach in determining Mr Mapu’s commencement salary when re-enlisting. 

It was not wrong for the respondent to take into consideration Mr Mapu’s qualifications, experience and work history in determining on what salary level he ought to be paid. 

When Mr Mapu resigned in 2014 he was earning R7 796 per month.  When he was re-enlisted, his salary was increased to R8 000 per month. 

This amounted to an increase of R204 per month.  One of the contributing factors as testified by Ms Ncebakazi Mzwali in not starting Mr Mapu at the commencement salary notch, was skills retention. 

The applicant argued that because Mr Mapu had previously resigned his re-enlistment makes him a new employee and therefore he should have been employed at the starting salary notch of a new employee. 

I cannot agree with the applicant, Mr Mapu was offered a salary that would ensure skills retention.

[32]   It has transpired that as from 1 April 2016, due to a salary equalisation process, the applicant’s salary shall increase from R7 567 per month to R10 530 per month whereas Mr Mapu’s salary will not increase because Mr Mapu has broken service. 

It was argued by the applicant that this proves that the respondent was wrong and this is an admission that he had been discriminated against.  I cannot agree with the applicant, in that the increase he will be receiving is a product of wage negotiations and collective bargaining.

Award

[33]   The respondent, Airport Company South Africa (SOE) has not discriminated against the applicant, Luyanda Totyi when he was paid less than Mandle Mapu. 

The applicant is not entitled to any relief.