Changes in organisational structure: Differentiation not discrimination

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

Details of hearing and representation

[1] In this case NP (“applicant”) alleged that Ezemvelo KZN Wildlife (“respondent”) is discriminating against her on arbitrary grounds by not paying her a grade C3 salary, as it does for other employees who perform the same/similar work and have the same job profile. The arbitration was held over ten days and was concluded on 24 August 2023. Thereafter written closing argument was submitted by both parties. Applicant was represented by Mr Thulani Gabela, Provincial Paralegal Officer of NEHAWU. Respondent was represented by Ms Zodwa Khumalo, respondent’s Manager of Employee Relations.

[2] While applicant earns a salary above the threshold, the parties agreed, in writing, that the matter be arbitrated by the Commission in terms of section 10(6)(b) of the Employment Equity Act.

[3] The following witnesses gave evidence for the applicant party:

3.1. Ms NP – applicant and Personal Assistant (“PA”) to Mr Lehlohonolo Phadima – General Manager: Scientific Services.
3.2. Mr Lehlohonolo Phadima – General Manager: Scientific Services

[4] The following witnesses gave evidence for the respondent:

4.1. Ms Mbali Ngcobo – Organisation Development Manager.
4.2. Ms Buhle Ndunakazi – Head of Human Resources
4.3. Mr Sudhindre Ghoorah – Executive Manager: Corporate Services.

Background

[5] It is common cause, alternatively it was undisputed that:

5.1. Applicant commenced employment with respondent in 2009 and held various positions in the organisation until her appointment to her current position of PA to the GM: Scientific Services on 1 January 2018 after having applied and been selected for the position, which was advertised at grade C1. Prior to being appointed to the post of PA, applicant had occupied positions at grade B3.
5.2. For the first four months of her employment in her new position of PA, applicant was paid the salary applicable to an employee on grade C3. On 2 May 2018 applicant received an email from Salaries Department notifying her of an error in her salary resulting in an overpayment of some R28,221,72 for the period January – April 2018 and that the overpayment would have to be recovered. The overpayment was recovered via deductions from applicant’s salary over a period of 12 months.
5.3. On 12 September 2018 while still paying back the overpayment, applicant queried her salary level with HR Head, Ms Ndunakazi, via an internal memo, stating that she believed she should be grade C3 like the other PAs with managers on Grade E2. Ndunakazi responded stating that the grade level of the manager’s position has no bearing on determining the level of his/her PA and that only Executive Managers reporting directly to the CEO regardless of grade have PAs at grade C3.
5.4. Not satisfied with Ndunakazi’s response, because there were PAs on C3 supporting E2 level managers who did not report to the CEO, in the approved 2013 organisation structure, applicant lodged a formal grievance on 11 October 2018. The solution she desired was “That I be aligned to my manager like other Personal Assistants with managers at E2 sitting at C3”. Phadima, her manager, supported her realignment to C3.
5.5. Applicant’s grievance was escalated to the Office of the CEO. In January 2019 applicant was advised by BD Dlamini: SM ER that her grievance had been closed.

The reasons given were that:

“the acting CEO convened a meeting on the 10th December 2018 to discuss your grievance. Present at this meeting were the acting CEO; the Head HR; the Head Conservation Services and the Senior Manager: ER. Noting that currently the job grading results of PAs reporting to the General Managers are graded as C1, the meeting agreed that your position is graded correctly. As such, the acting CEO committed himself to communicating this decision to you in a meeting with yourself.”

5.6. Not satisfied with the outcome of her internal grievance, applicant referred a dispute to the CCMA on 15 December 2020 in which she summarised the facts of the dispute inter alia as “ever since I assumed duties in this office my manager has always been at an E2 level which means I should be at a C3 salary scale regardless of his job title”.
5.7. The first organisational structure of respondent, approved by the MEC in 2013 could not be properly implemented because certain positions were omitted in error. Prior to and post 2013 there were/have been numerous changes to the structure. In 2015/2016 a new structure was developed and adopted by the Board but was never approved by the MEC. Certain titles were changed to Managing Executive and some Executive positions were changed to General Manager. In or around 2018 there was an organisation consolidation which was not approved resulting in respondent reverting to the approved 2013 structure in 2020. Again in 2020 a realignment of the Executive structure to the approved 2013 structure was submitted to the MEC, but put on hold pending respondent’s merger with the Sharks Board.

[6] The main contentions of the applicant party were that:

6.1. Within the employment of respondent there are PAs graded at C3 for managers who are graded at E2 and PAs graded at C1 for managers who are graded at E2. Their job profiles, expected output and the work they do is substantially the same. There is no policy that gives provisions for this particular practice except that it is based on the discretion of the HR. In applicant’s case, her submission to Ndunakazi on 12 September 2018, supported by her manager, that she be aligned to grade C3 salary level was declined by the Head of Human Resources. Furthermore, the Acting CEO of the organisation suggested to the HR that this matter be resolved internally, but HR did not accede to the suggestion.
It is submitted that the Head of HR is manipulative of the system and that she has her favourite employees whom she is able to make submission for them to be placed on higher salaries as HR officers, positions that are not in an approved structure of the organisation, whereas she declined submission for the applicant which was in a same spirit with those employees.
6.2. Applicant is being unfairly discriminated on arbitrary grounds which impacts negatively to her dignity, she feels inferior within the organisation due to unfair discrimination practiced by the respondent.
6.3. Specific reference was made to the applicant’s predecessor, Ms De Jager; the former PA to Senior Manager: Commercial Services, Ms Ronelda Volmink whose manager is an E2, was remunerated at C3 salary level and when she vacated this position, Ms Sibongile Nzama was appointed to act on this position. Nzama was remunerated an acting allowance of a C3, but when respondent learnt that applicant had made Nzama her comparator in relation to the payment of C3 acting allowance, the acting allowance was suspended and subsequently reduced to C1. This is the same scenario with that of the applicant. The conclusion is drawn that black Africans are being discriminated against by the respondent.
6.4. Applicant further made comparisons with Ms Dené Watson, who is a PA remunerated at a C3 to the Senior Manager: Conservation and Parks, graded at E2. The conclusion by the applicant is that the differentiation in remuneration is orchestrated on the basis of racial circumstance, directly and indirectly.
6.5. The evidence of the applicant was corroborated by her witness, Mr Phadima, that the position of the Personal Assistants and Executive Personal Assistants are the same, with the same job profile, same expected job output, but the remuneration is somehow not the same. This version was not disputed by the respondent, instead, it was confirmed by the respondent’s witness, Ms Ngcobo.
6.6. The definition which purports that Executive PAs (“EPAs”) as given by Mr Ghoorah [sic], does not have any basis. Furthermore, Mr Phadima’s evidence is that, the definition is correct but it is not the case with the Ezemvelo. If that was the case in respect of the EPAS, then the job profile should have been different from that of the PA.
6.7. Ms Ngcobo testified that there has been a state of flux in the organisation which has not been normalised even up to date. This demonstrated by the fact that Mr Ghoorah was appointed to the position of Executive Manager: Corporate Services which appears in the organisational structure (H4) that was not approved.
6.8. The evidence of the respondent in defence of the claim made by the applicant in respect of unfair discrimination on the basis of equal pay for work of equal value, arbitrary, favouritism, racial preference is overwhelmed by contradiction, unreliability, evasiveness, lack of legal basis and stands to be dismissed.
6.9. Applicant successfully discharged onus of proof that indeed she is a victim of unfair discrimination. Her evidence is credible, logical and was based on factual and documentary evidence. Furthermore the evidence of the applicant was not disputed on the basis of fact, policy and credibility thus it stands to be admitted.
6.10. Applicant prays that the Commissioner orders the respondent to place her to a C3 salary as other PAs on C3 with the same job profile with retrospect from the date of her appointment to the position. Alternatively, the relief which the Commissioner deems appropriate for the applicant in respect of the dispute of this nature.

[7] The main contentions of the respondent were that:

7.1. When applicant was appointed as PA to the GM: Scientific Services in January 2018, a capturing error was made resulting in her receiving an incorrect salary. This was a mistake that was rectified. The position applicant applied for was at grade C1. She was appointed at C1. The position was evaluated at C1 in 2012.
7.2. The grade of the line manager does not automatically translate into the grade for the PA. The level of the Manager the PA supports is the determining factor. Executive Managers who report to the CEO have PAs on grade C3 level. General Managers at E2 who do not report direct to the CEO have PAs at C1 level, unless the individual (PA) is a “person/position to holder” (protected in that position) until that person vacates the position, at which time the position reverts to the correct grade. While respondent admits that there are/have been historical inconsistencies, mainly due to changes in organisational structure, such inconsistencies are being dealt with.
7.3. While there is no written policy dealing with Executive PAs being C3 and PAs being at C1, it is practice.
7.4. The Manager does not decide the grade or salary level of a position. This is done by reference to salary scales and job evaluation. The grade determines the salary. It is possible for an employee to earn a salary of a higher graded position through pay progression and salary increases over years of service.

Analysis

[8] Chapter 2 of the Employment Equity Act (the “Act”) prohibits unfair discrimination in the workplace. Section 6(1) in broad terms provides that no person may unfairly discriminate, directly or indirectly against an employee, in any employment policy or practice, on a listed or arbitrary ground. “Arbitrary” in the generally accepted sense means capricious or not based on reason.

[9] Section 11(2) of the Act provides that if unfair discrimination is alleged on an arbitrary ground – as in this case – the complainant must prove on a balance of probabilities that:

9.1. The conduct complained of is not rational;
9.2. The conduct complained of amounts to discrimination; and
9.3. The discrimination is unfair.

[10] Section 11(1) of the Act provides that where unfair discrimination is alleged on a ground listed in section 6(1) the employer must prove, on a balance of probabilities, that such discrimination:

10.1. Did not take place as alleged; or
10.2. Is rational and not unfair, or is otherwise justifiable.

[11] In her initial referral of this dispute, applicant summarised the facts of the dispute inter alia as “ever since I assumed duties in this office my manager has always been at an E2 level which means I should be at a C3 salary scale regardless of his job title.”

In his opening statement, at the beginning of the arbitration, applicant’s representative characterised the dispute as “unfair discrimination on arbitrary grounds – equal pay for work of equal value”.

No mention was made of other grounds of the alleged discrimination.

In her Request for Arbitration applicant described the dispute as “Equal pay for work of Equal Value. I am being paid differently from my peers with managers on E2. I am remunerated at C1 instead of C3 since 2018”.

During the course of the arbitration however, applicant alleged that she was discriminated against on the basis of race in that when white, coloured and Indian comparators vacated their PA positions at C3 salary levels/grades they were replaced by black employees on C1 salary scales, like herself.

Under cross-examination it was put to applicant that in her evidence-in-chief she had said that her dispute relates to arbitrary grounds, not to colour. Her reply was “yes”. It was then put to her that she also said that she is being discriminated because of her colour, to which she had also replied “yes”. These answers are an important contradiction in law which applicant is apparently unaware of.

[12] On a number of occasions during the proceedings, and in his closing statement, applicant’s representative stated that the dispute was being brought on arbitrary grounds.

[13] The arbitration was accordingly run on the basis of applicant bearing the burden of proof. I found all the witnesses, including applicant, to be credible. Respondent’s witnesses corroborated one another’s evidence in all material respects.

[14] Applicant is bound by the characterisation of the dispute by her representative at the outset of the proceedings. To switch causes of action mid-stream has important onus implications. In the result I will treat the matter as the applicant bearing the onus to prove, but will touch on applicant’s race allegations later in my analysis.

[15] Differentiation between employees/groups of employees is not unfair per se, it is only unfair if the differentiation amounts to discrimination because it is based on a ground listed in section 6(1) of the Act or on any other arbitrary (but analogous) ground and that the discrimination is proven to be unfair.

[16] In Harksen v Lane NO and others 1998 (1) SA 300 (CC) the Constitutional Court established a two pronged test for determining whether differentiation between people or categories of people amounts to unfair discrimination, as follows:

“(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there has been discrimination will depend upon whether, objectively, the grounds are based on attributes and characteristics which have the ability to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’ does it amount to ‘unfair discrimination’? If it has been found to be on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his situation”.

[17] In essence, the dispute is about whether or not applicant should have been paid in accordance with C3 salary scales from her date of appointment in January 2018 to the present as she alleges, or on C1 salary scales, as contended by respondent? If she should have been paid on C3 scales, is there a differentiation between applicant and her comparators, if so does the differentiation amount to discrimination? If so, does the discrimination amount to unfair discrimination?

[18] The dispute arises primarily from the fact that applicant’s predecessor in the job of PA for the GM: Scientific Services was a Gerda de Jager who exited respondent’s services in 2017, prior to applicant’s appointment to the position. De Jager was earning the salary of a grade C3, notch 11 at the time she left. Other comparators raised by the applicant in her evidence were: Rebecca Naidoo, Ronelda Volmink, Sibongile Nzama and Dené Watson.

[19] If discrimination is alleged on an arbitrary ground, the complainant must prove that, on a balance of probabilities, the conduct complained of is not rational; the conduct complained of amounts to discrimination and that the discrimination is unfair.

[20] In my view applicant has failed to prove that the conduct of the respondent was not rational, for the following reasons:

20.1. Respondent’s contention is that a decision was taken by the organisation soon after the 2012 grading exercise in 2012, conducted by 21st Century Pay Solutions (Pty) Ltd in 2012, in which the CEO’s PA position was graded C3, that PA’s supporting Executive Managers would also be graded C3 and that PA’s supporting GM level Managers would be graded C1 – as per the PA job evaluation results. Applicant’s contention is that all grade E2 level managers, regardless of who they report to, ought to have PAs on grade C3 or C1, paid at C3 salary scales.
I prefer the evidence of respondent’s witnesses over the evidence of applicant, despite there being no formalised policy to this effect and there being little or no difference in the job profile/description of PAs and Executive PAs.

My reasons are:

20.1.1. Their institutional knowledge outweighs that of the applicant.
20.1.2. Their evidence is supported by the document titled “Calculation of Personal Assistant Grading Implementation” at bundle “E” page 34 and by applicant’s witness, Phadima, who acknowledged the difference between PAs and Executive PAs – himself being the manager of a PA (the applicant) and an Executive PA, in his acting role of an Executive Manager.
20.1.3. The evidence of Ms Ngcobo that the level of the supervisor/manager is taken into account in grading decisions was unchallenged and as she is the person who oversees job evaluation at respondent, I accept her evidence.
20.1.4. Ghoorah and Phadima gave cogent reasons why there is a difference between the levels of PAs supporting GMs and Executive Managers reporting to the CEO.
20.1.5. In any event, it is my view that it is within management’s prerogative to take such a decision.

[21] In my view applicant has failed to prove that respondent’s conduct in not paying her on C3 salary scales amounts to discrimination. My reasons are as follows:

21.1. It is common cause that applicant applied for her current post, advertised at grade C1, was appointed and paid, after correction, on C1 salary scales.
21.2. It is common cause that there are/have been PAs, who do not report to Executive Managers, graded C3 or paid on C3 salary scales. Respondent’s witnesses admitted as much.
These anomalies in the system are largely due to the many organisational changes that have taken place at respondent before and after 2013. Some of the anomalies have historical roots, others have arisen from the actions of senior managers promoting their own support staff, without following established HR procedures.
From the evidence presented, it is difficult if not impossible to divine when each anomaly arose, the cause and in which organisational stage. The numbers are small given that respondent is a large organisation employing some 2000 people.
In the approved but unimplementable 2013 structure there are some five Executive Manager positions reporting to the CEO and six General Manager positions reporting to Executive Managers.
In the 2020 interim top structure there are four Executive Managers and some seven GM level manager positions. A number (unknown) of the positions are vacant giving rise to some senior managers holding their own portfolios and acting in others at the same time.
The alignment of the grades of support staff with each organisational change, where certain positions have changed from Executive Manager to General Manager, and vice versa and certain portfolios have been amalgamated or done away with and changes in CEOs, not unsurprisingly places strain on HR management and systems.
Whether HR is poor at managing the complexity of all this, as applicant’s evidence suggests, or HR is doing its best in its on-going effort to align practice to policy in an ever-changing organisation, as the evidence of respondent’s witnesses suggests, is difficult to tell.
It however appears from the unchallenged evidence of Ngcobo, supported by applicant’s admission that Dené Watson is the only C3 PA whose manager does not report to the CEO, that things are improving and HR is making inroads at aligning policy to practice.
21.3. Applicant is not an anomaly in the system. She is a perfect example of the alignment of policy and practice. Her job is graded C1 and her earnings are aligned to the salary scales of her grade.
Her contention is that if HR had listened to Phadima, who supported her grievance to be paid on C3 salary scales and to the then CEO who directed that the matter be resolved internally, she would not be at the CCMA. Had this happened, applicant would have become another anomaly in the system, giving other PA’s cause for complaint.

[22] To touch briefly on the applicant’s comparators:

22.1. Rebecca Naidoo, who no longer works for respondent, was a C3 PA to the Manager Strategic Planning and Control (E2) who did not report to the CEO.
22.2. Gerda de Jager, her predecessor, who left respondent in 2017, was a C3 alternatively paid on C3 notch 11. According to respondent’s witnesses de Jager started in the days of the old Natal Parks Board in 1999 and was graded C1 but on a personal notch (C3 notch 11) due to length of service and pay progression. The origin of her payment could not be established because respondent’s records did not go that far back.
22.3. Ronelda Volmink who was a C3 PA to the Ecotourism Manager who did not report to the CEO, but the post was done away with and Volmink moved to Board Secretarial at C3. The Broad Secretarial post, according to the 2012 job grading report, was graded C3.
22.4. Sibongile Nzama previously in B band earned an acting allowance at C3 as PA to senior Manager Commercial Services from 2019 to 2022, after which her acting allowance was reduced to C1. Applicant believes that was because she had cited Nzama as a comparator in this CCMA case. This was denied by Ndunkazi and Ghoorah whose evidence was that Nzama’s acting allowance was reduced because her manager’s position of Executive Manager changed to GM level in 2020.
22.5. Dené Watson was PA to Senior Manager Conservation and Parks. The manager’s position after being vacant for 4 years was recently advertised at E2. The previous manager held the position at E3. In terms of the 2013 structure this position does not report to the CEO. According to Ngcobo and Ndunakazi, Watson supported an Executive Manager at C3 before and after the 2013 structure was approved and now supports Phadima who is currently acting in this Executive position. This was confirmed by Phadima in his evidence.

[23] I am unable to decide which of the above competing versions and whether or not the replacement of some of the anomalous positions by black African PAs at C1 – previously held by white, coloured or Indian PAs is more probably true, however, the unchallenged evidence of Ndunakazi was that when positions held by incumbents on anomalous grades/salary scales are vacated, this provides HR the opportunity to properly implement the correct grade and salary of new appointees. Respondent’s witnesses denied any discrimination on the basis of race.

[24] While there have been and may still be differences between applicant and a few of her comparators, does this amount to discrimination? In my view it does not, for the following reasons:

24.1. While I sympathise with applicant’s frustration at having her initial salary paid on C3 scales, then corrected and having to refund respondent the overpayment, as well as her feeling of having been treated unfairly by not being paid on C3 salary scales like her predecessor, differences in pay for equal work do not automatically translate into discrimination.
In terms of the Harksen test, whether or not differentiation amounts to discrimination depends on whether, objectively, the grounds for founding discrimination are based on attributes and characteristics which have the ability to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
As if to tick this box, applicant, in her evidence in chief, made much of the unfairness she allegedly experienced at respondent prior to her appointment as PA in 2018.
The only reason she presented about her dignity having been impaired, by not being paid on C3 scales, was that “almost everyone in Salaries knows you’re not a C3 anymore but a C1 – dragging me. The reasons given to me for being a C1 are not rational, given my manager’s support for C3”.
24.2. Phadima’s evidence in this regard was “It is common cause that Ms NP is not satisfied with C1 and it is unfair. She is often down and feels victimised. It has affected her to some degree”.
24.3. This is not the stuff of an impairment of a person’s fundamental dignity as a human being. In my view, this is a subjective feeling of unfairness with some foundation.
24.4. I have found that respondent’s reason for differentiating grades and salary scales between PAs who support General Managers and Executive PAs who support Executive Managers to be rational. Axiomatically, PAs who report to E2 Managers are not entitled to be graded at C3 or to earn on C3 salary scales, unless their E2 Managers report to the CEO.

Award

[25] Applicant’s claim of unfair discrimination is dismissed.

Flynote:

Courtesy of BALR

Discrimination – Equal pay for equal work – Personal assistant claiming that she earned less than others, but employer showing that discrepancies were result of changes in organisational structure – Discrimination not proved.

Summary:

Parties Involved

• Applicant: Personal Assistant (PA) to one of the respondent’s managers
• Respondent: Employer (Company managing the PAs and their salaries)

Claims by the Applicant

1. Primary Claim: The applicant alleged unfair discrimination on arbitrary grounds, specifically focusing on “equal pay for work of equal value.”
2. Subsequent Claim: The applicant later claimed that the discrimination was based on her race.

Respondent’s Defense

• Salary Determination: The respondent argued that the salaries of PAs were not tied to the grade of the managers they assisted.
• Overpayment Issue: The respondent maintained that the applicant had been overpaid erroneously, and necessary salary deductions were made to rectify this.
• Management Prerogative: It was within management’s prerogative to set PA grades, which were not dependent on the grades of the managers they supported.
• Historical Discrepancies: Discrepancies in PA salaries had historical causes, and efforts were being made to resolve them.

Commissioner’s Findings

• Burden of Proof: The applicant bore the onus of proving discrimination that was both irrational and unfair.
• Rational Decision: The decision to maintain the applicant’s grade was rational as PA grades were not linked to their managers’ grades.
• Discrimination on Race or Arbitrary Grounds: No evidence indicated that the applicant was discriminated against based on her race or any arbitrary grounds.
• Historical Salary Discrepancies: Existing discrepancies were historically rooted, and attempts to address them did not equate to unfair discrimination against the applicant.

Outcome

• Application Dismissed: The applicant’s claims were not substantiated, leading to the dismissal of the application.

Key Legal Takeaways

1. Onus of Proof in Discrimination Cases: The burden lies on the claimant to prove that discrimination occurred and that it was irrational and unfair.
2. Rational Management Decisions: Companies have the prerogative to set employee grades and salaries, provided these decisions are rational and not discriminatory.
3. Historical Salary Discrepancies: Historical salary differences alone do not constitute evidence of current discrimination unless linked directly to discriminatory practices.