Fair pay differentiation: Discrimination not proved

Note: Footnotes omitted and emphasis added

Introduction

[1] The applicant (Mr. Mogopodi) institutes a claim for unfair discrimination premised on an arbitrary ground. More sepcifically, Mr. Mogopodi’s case is premised on section 6(4) of the Employment Equity Act (EEA). He alleges that the respondent unfairly discriminated against him by placing him in the position of Deputy Director: Agricultural Manager, on salary level 11, whereas other Deputy Directors: Agricultural Manager who performed the same responsibilities and tasks were placed on a higher salary level, being salary level 12.

[2] The respondent denies any unfair discrimination and that the discrepancy in the remuneration between Deputy Directors on salary levels 11 and 12 is arbitrary.

Background

[3] The background facts are largely common cause.

[4] Mr. Mogopodi applied for the position of Deputy Director: Agricultural Manager, which position was advertised at salary level 11. He was interviewed and was appointed into the position on 1 February 2012, which appointment he accepted. Messrs. E. Nkosi and L. Mashamaite were appointed to the same position and on salary level 11, albeit responsible for different municipalities within the Mpumalanga Province.

[5] Other employees who were appointed in the same position as Mr. Mogopodi, and who performed the same work and responsibilities were appointed on salary level 12, and thus earned a higher salary.

[6] Consequently, Mr. Mogopodi lodged a grievance in 2018, pertaining to being appointed on salary level 11, whereas some of his colleagues who performed the same work and responsibilities were appointed on salary level 12. On 31 October 2018, the outcome of his grievance was communicated to him. His grievance was dismissed. The reasons for the dismissal of the grievance read as follows:

‘Dear Mr. Mogopodi
RE: GRIEVANCE: YOURSELF
______________________________________________________________
1. Your grievance dated 18 October 2018 which our office received on 22 October 2018 refers.
2. In your grievance you are aggrieved because you are not paid at salary level 12, which is the case with few of your other colleagues. The salary difference between you and other colleagues is that you were not employed on the same year and the post in which you applied for was at salary level 11.
3. Please be informed that the Department has taken a position regarding officials who are in the same situation as you in that their salary levels will not be upgraded.
4. Your grievance regarding upgrading is therefore dismissed.
5. You are further informed that if you remain dissatisfied about decision taken by the Department, you may invoke the dispute mechanism provided within the Departmental policy and or in terms of Labour Relations Act [sic].’

[7] Mr. Mogopodi, dissatisfied with this outcome, referred a dispute to the Commission for Conciliation, Mediation and Arbitration. The dispute remained unresolved. Thereafter, Mr. Mogopodi instituted this referral. The relief sought by Mr. Mogopodi is an order for equal pay for equal work for all Deputy Directors: Agricultural Manager; that he be upgraded to salary level 12; and that he be paid the difference between the amount he was paid and the amount he was supposed to be paid as a Deputy Director: Agricultural Manager on salary level 12.

Evidence

[8] Mr. Mogopodi, the first witness for the applicant, confirmed that he applied for the position of Deputy Director: Agricultural Manager, on salary level 11 and he accepted this appointment. He stated that the appointment letter did not record the salary level of the position.

[9] In this position, Mr. Mogopodi was responsible for the Mkhondo Local Municipality in Mpumalanga. His duties and responsibilities were managing all activities of agriculture in the municipality and supervising staff and ensuring all financial related matters are in compliance with the Public Finance Management Act.

[10] Following his appointment, in and during 2016 or 2017, during discussions amongst the other Deputy Directors when their job description was discussed, he discovered that some Deputy Directors held the same responsibilities but were paid at a higher salary level, i.e. level 12. He stated that the following employees were appointed on salary level 12: Shaun Wilken, Bhekiwe Shongwe, Freddie Mathebula, Mr. Anthony and others.

He stated that during 2018, when he and his colleagues were compiling their performance agreements he realised that these aforementioned colleagues were appointed on salary level 12. Given his discovery, he lodged the grievance referred to above.

His evidence was that he did not refer his grievance alone, and that there were ten other employees that also lodged the grievance. (He did not however, mention who these further ten employees were.

The grievance form that is contained in the evidence bundle is completed by Mr. Mogopodi only. No other grievance forms were submitted in evidence). Mr. Mogopodi stated that the aggrieved were called to a meeting by employment relations.

The grievance was acknowledged and the outcome of such a grievance was that they were appointed on salary level 11 and the matter could not be entertained further.

[11] Mr. Mogopodi’s evidence was that he conducted some research and chanced upon a document dated 2008. This document, which he referred to as a “resolution”, was drafted by the Head of Department, requesting the then Member of Executive Council (MEC), Mr. DD Mabuza, to approve the upgrading of all Deputy Directors at level 11, to level 12.

The MEC approved this request on 26 June 2008. Mr Mogopodi confirmed that he was not yet appointed when this approval was made. In terms of the “resolution”, there existed eighteen Deputy Director: Agricultural Manager positions within the respondent. The “resolution” specifically mentioned nine Deputy Director: Agricultural Manager positions as well as the names of the officials that occupied those nine positions at the time. In terms of paragraph 5.1 of the “resolution”, these nine positions were upgraded immediately to salary level 12, following the approval by the MEC.

In terms of paragraph 5.2 of the “resolution”, the remaining nine positions which were not occupied by “warm” bodies at the time, would also be upgraded to salary leval 12 in future. The budget for the upgrade of all eighteen posts was recorded as R1,095,198 per annum, which amount was available in the personnel budget. Therefore, when he was appointed, he ought to have been appointed into a position that was upgraded to salary level 12. The net effect of what transpired, according to Mr. Mogopodi, was that the respondent was in contravention of this “resolution”.

[12] According to Mr. Mogopodi, Mr. Anthony, Mr. Wilken and Ms. Shongwe formed part of the nine Deputy Directors who were to be appointed in the future, on level 12 and that they were indeed appointed on level 12 after 26 June 2008. Mr. Ndlovu, who is also appointed on salary level 12 post 26 June 2008, is one of the names that is specified in the “resolution”.

[13] Mr. Mogopodi’s evidence was that despite being on a lower salary level, he outperformed the colleagues who were appointed on salary level 12. Over the years, he and his team received rewards for outstanding performance. That he was appointed on a lower salary level humiliated him and impaired his dignity, as he is entitled to equal pay for equal work. Remunerating him on a lower level in comparison to his colleagues, amounts to unfair discrimination by the respondent.

[14] Mr. Mogopodi retired from the respondent on 31 December 2019. He requests this Court to consider reimbursing him the difference between the remuneration in the two salary levels, from 26 June 2008 (the date of the “resolution”). He computes this to be a 15.6% salary difference, which he wants to be compensated with.

[15] Mr. Mogopodi stated that the averment in paragraph 7.1 of the statement of response that his post was advertised as a result clause 3.6.3.2 of Resolution 3 of 2009 was not the response that was provided to him when his grievance was dealt with. Further, that no such clause exists in Resolution 3 of 2009 and that this Resolution pertains to other disciplines, such as quantity surveyor, architects, etc. and not argricultural managers. Therefore, Resolution 3 of 2009 is irrelevant.

[16] The evidence of Mr. James Mbali Mokgotho (Mr. Mokgotho), the second witness for the applicant, was that he was appointed in the position of Deputy Director: Agricultural Manager in 2011, and at salary level 11. He is still employed with the respondent and is currently occupying the same position, but is currently on salary level 12. This change in salary level came about as a result of an automatic promotion in 2019. Mr Mokgotho explained that employees who have served more than fifteen years with the respondent are entitled to automatic promotions. In other words, he was promoted to salary level 12 and his position was not upgraded.

[17] Mr. Mokgotho knew Mr. Mogopodi as one of his former colleagues. His evidence was although he was appointed at salary level 11, he did not lodge a grievance in view of other colleagues performing the same responsibilities, but being appointed on salary level 12. During 2018, Mr. Mogopodi and him discovered the “resolution”. Mr. Mokgotho’s evidence was that Mr. Mogopodi should not be upgraded to salary level 12, but should be remunerated at that level, on the basis of “equal pay for equal work”.

[18] During cross-examination Mr Mokgotho agreed that for nine years, having being appointed at salary level 11, Mr. Mogopodi and him did nothing to advance their cause. His explanation was that “15 years was around the corner for me”. It was put to him that Mr. Mogopodi did nothing to advance his case and only instituted his grievance towards the end of his working career in order to get a higher pension pay-out, to which Mr. Mokgotho responded that that was his choice.

[19] Mr. Mokgotho agreed that when an employee is employed earlier, as was Mr. Wilken, his salary would increase as a result of salary increments, adjustments and pay progression, thus he would earn a higher salary. He agreed that one cannot wake up and decide to be on a higher salary level: one attains a higher salary level through promotion or an appointment on that level.

[20] Mr. Nate Gasa (Mr. Gasa), the only witness for the respondent, and the respondent’s Employment Relations Manager, stated that he dealt with Mr. Mogopodi’s grievance and is the author of the grievance outcome letter.

[21] His evidence was that subsequent to the memorandum that was approved by the MEC on 26 June 2008 (which he emphasised is not a resolution), the respondent was informed by the Department of Public Service and Administration (DPSA), that the approval of the memorandum was irregular. His evidence was that post the approval by the MEC, some Deputy Directors: Agricultural Manager were upgraded to level 12 with effect from 1 July 2008.

However, given the advice from the DPSA, this decision was reversed. His evidence was that there were a series of circulars from the DPSA during the period 2009 to 2012, that had the intention to bring about uniformity in the entry-level positions of Deputy Directors. As a result, the entry salary was salary level 11 for all Deputy Director positions, and salary level 9 for all Assistant Director positions.

[22] Further, in the sector of Extension Services under which sector the position of Deputy Director: Agricultural Manager (and therefore, Mr. Mogopodi belonged), with effect from on 1 April 2009, this sector, by way of a collective agreement and a Resolution concluded between the employer and the representative trade unions at the Public Service Sectoral Bargaining Council (PSCBC), all Deputy Director: Agricultural Manager positions would have salary level 11 at entry-level.

[23] In addition, Mr. Gasa explained that there was a further Resolution that provided that all the Deputy Directors whose positions had been upgraded to level 12 as a result of the memorandum that was approved by the MEC, would be retained at salary level 12. Further, the collective agreements and circulars mentioned that when a post is advertised at salary level 11, it must have first been evaluated and graded at salary level 11. Thus, when Mr. Mogopodi applied for his job, it was graded at salary level 11. None of these circulars were presented as evidence.

Mr Mogopodi took issue with this. Mr. Gasa agreed that they were not contained in the evidence bundle, but they existed and the position is that all entry level salaries for Deputy Directors is salary level 11 to bring about uniformity in the public service as mandated by the DPSA and collective agreements (resolutions) at sector level.

Legal framework

[24] Section 6 of the Employment Equity Act (EEA) provides as follows:

‘6 Prohibition of unfair discrimination

(1) 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, pregnancy, 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.
(2) …..
(3) …
(4) 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’.

[25] Item 4 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value (Code of Good Practice) provides as follows:

‘4. Eliminating Unfair Discrimination in Respect of Pay/Remuneration

4.1 An employer must, in order to eliminate unfair discrimination, take steps to eliminate differences in terms and conditions of employment, including pay/remuneration, of employees who performed the same or substantially the same work or work of equal value that are directly or indirectly based on one or more listed or any other arbitrary ground.
4.2 The principle of equal pay/remuneration for work of equal value addresses a specific aspect of workplace discrimination and the undervaluing of work on the basis of the listed or on any other arbitrary ground in terms of section 6(1) of the Act.
4.3 In South Africa, for historical reasons, the undervaluing of work has the greatest significance when examining work performed by employees who are female, black or those with disabilities. However, differences based on any of the listed or any other arbitrary ground may constitute unfair discrimination.
4.4 When examining whether the obligation to apply pay/remuneration equity in the workplace is being complied with, three key issues require scrutiny –

4.1.1 Are the jobs that are being compared the same, substantially the same or of equal value in terms of an objective assessment?
4.4.2 Is there a difference in the terms and conditions of employment, including pay/remuneration, of the employees in the jobs that are being compared?
4.4.3 If there are differences in the terms and conditions of employment, can these be justified on fair and rational grounds?

4.5 Differences in terms and conditions of employment, including pay/remuneration, of employees of the same employer may not necessarily constitute unfair discrimination where the complainant and the comparator do not perform the same, similar or work of equal value.

4.6 A difference in pay/remuneration will only be unfair discrimination if the differences are directly or indirectly based on race, sex, gender, disability or any other listed or on any other arbitrary ground.’(Emphasis added)

[26] In respect of determining whether differences in terms and conditions of employment are rational and justifiable, item 7 of the Code is instructive, and provides as follows:

‘7. Factors Justifying Differentiation in Pay/ Remuneration

7.1 Once jobs have been evaluated and graded, the various jobs are allocated pay/remuneration packages in accordance with the pay/remuneration philosophy of the employer and the value of the jobs. Employers are required to ensure that unfair discrimination does not occur at any of these stages.

7.2 Where employees perform work that is the same or substantially the same or is work of equal value, a difference in terms and conditions of employment, including pay/remuneration, is not discrimination if the differentiation is not based on listed or any other arbitraryground in terms of section 6(1) of the Employment Equity Act, as amended.

7.3 Regulation 7 of the Employment Equity regulations lists a number of grounds which are commonly taken into account in determining pay/remuneration.

Subject to what is stated below, it is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following factors –

7.3.1 the individuals’ respective seniority or length of service;
7.3.2 the individuals’ respective qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;
7.3.3 the individuals ’respective performance, quantity or quality of work, provided that all employees are equally subject to the employer’s performance evaluation system, and that the performance evaluation system is consistently applied;
7.3.4 where an employee is demoted as a result of organisational restructuring or for any other legitimate reason without a reduction in pay/remuneration and fixing the employee’s salary at this level until the pay/remuneration of employees in the same job category reaches this level;
7.3.5 where an individual is employed temporarily in a position for purposes of gaining experience or training and as a result receives different pay/remuneration or enjoys different terms and conditions of employment;
7.3.6 the existence of a shortage of relevant skill in a particular job classification; and
7.3.7 any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the Act.

7.4 These factors may not be used to determine pay/remuneration in a manner that is biased or indirectly discriminates against an employee or group of
employees based on a listed or any other arbitrary ground in terms of section 6(1) of the Act.’(Emphasis added).

[27] In Harksen v Lane NO the Constitutional Court set out a two-pronged test to determine whether differentiation amounts to unfair discrimination where reliance is placed on the equality provision of the Constitution.

The Court stated as follows at paragraph [53]:

‘(a) Does the provision differentiate between people or categories of people?

If so, does the differentiation bear a rational connection to a legitimate government purpose?

If it does not then there is a violation of section 8(1).

Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination?

This requires a two stage analysis:

(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 is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential 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 have been 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 or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).’

Was Mr. Mogopodi unfairly discriminated against?

[28] As stated above, Mr. Mogopodi alleges discrimination on the premise of section 6(4) of the EEA. The conduct complained of, is that the respondent discriminated against him by appointing him on salary level 11, whereas, other employees in the same role and performing the same duties and responsibilities are on salary level 12.

[29] In terms of the provisions on section 11(2) of the EEA, Mr. Mogopodi bears the onus to prove unfair discrimination on an arbitrary ground.

In so doing, he must prove, on a balance of probabilities, that:

29.1 the conduct complained of is irrational;
29.2 the conduct complained of amounts to discrimination; and
29.3 the discrimination is unfair.

[30] It is submitted on Mr. Mogopodi’s behalf, that it was irrational for the respondent to place him on salary level 11, as the “resolution” provided that all eighteen posts of Deputy Director: Agricultural Manager should be on salary level 12; that Mr. Anthony, Mr. Wilken and Ms. Shongwe were appointed with Mr. Mogopodi, yet, they were placed on salary level 12, and he was placed on level 11.

This conduct by the respondent is irrational. Mr. Mogopodi submits that Mr. Anthony, Mr. Wilken and Ms. Shongwe’s dates of appointment appear on B56 to 68. (Ms. Shongwe’s appointment date is 01 October 2002; Mr Anthony’s is 09 September 1992; and Mr Wilken’s is 03 April 1996).

I debated with Mr. Mudau for the applicant, what the applicant meant by stating that he was appointed “with” Anthony, Wilken and Shongwe, given that they were all appointed much earlier than Mr. Mogopodi. Mr. Mudau confirmed that Mr. Mogopodi was not appointed “with” them, but that they were all appointed post the “resolution”, and as part of the remaining nine posts that were to be upgraded to salary level 12, save that Mr. Mogopodi was appointed on salary level 11.

[31] Mr. Mudau further submitted that the failure by the respondent to produce the DPSA directive and collective agreements indicating that Deputy Directors: Agricultural Manager should be at level 11 is hearsay evidence and should be rejected.

He submitted that this conduct is irrational. He further submitted that Mr. Gasa initially stated that the reversal of the “resolution” occurred on 1 April 2009, and later, stated that it was in 2010, and thereafter, that the Resolution 3 of 2009 is inapplicable to Mr. Mogopodi.

Mr. Mudau submitted that the respondent discriminated against Mr. Mogopodi on the basis of Resolution 3 of 2009, and therefore, the “discrimination is irrational”. In conclusion, Mr. Mudau submitted that the last ground of irrationality is the employment contract that was signed with Mr. Mogopodi – that to raise a case of discrimination, a contract of employment must first be concluded.

Mr. Mudau proceeded to argue on the basis of Barkhuizen v Napier that due to the inequality of bargaining power,

• the employment contract is contrary to public policy,
• infringes Mr. Mogopodi’s right to equality and
• infringes section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution)

Mr. Mogopodi led no evidence of unequal bargaining power and the employment contract being contrary to public policy or violating the Constitution. This was not his case before the Court.

It is trite that litigants are bound by their pleadings. I raised this with Mr. Mudau and he responded that Mr. Mogopodi’s right to dignity was infringed by the respondent; that the respondent’s conduct was irrational and the discrimination is unfair.

[32] As I understand the submission on behalf of Mr. Mogopodi, the respondent’s conduct of appointing him on salary level 11 while other colleagues who were appointed in the same post on level 12, after the MEC’s approval on 26 June 2008, is irrational. The conduct amounts to discrimination because he is paid less and he is treated unequally, as they all perform the same functions and responsibilities. His dignity is impaired. He has been unfairly discriminated against.

[33] The respondent contends that the parties are bound by the Pre-trial Minute. It is common cause that Mr. Mogopodi applied for and accepted the post at salary level 11. Mr. Mogopodi concluded an employment contract with the respondent freely and voluntarily.

[34] Mr. Mogopodi was appointed on salary level 11, which is the entry salary level of his position, together with Mr. Nkosi and Mashamaite. The latter two employees hey did not lodge grievances. Mr. Mogopodi was appointed after Wilkens, Shongwe and Anthony. Employees move to salary level 12 through upgrades and promotion. An employee on salary level 11 does not earn the same as one on salary level 12. The respondent contends that the applicant failed to prove that he was unfairly discriminated against.

Analysis

[35] Mr Anthony, Mr Wilken and Ms Shongwe were all employed on earlier dates than Mr. Mogopodi. Their salaries were upgraded to salary level 12 following the MEC’s approval. These upgrades were effective 2008. The evidence of Mr. Gasa was that upgrades occurred following the MEC’s approval. This was brought to a halt following directives from the DPSA to ensure uniformity in the public service that entry level salaries for Deputy Directors is level 11.

Further, a collective agreement/resolution in the Extension Services sector (to which sector Mr. Mogopodi belonged), resolved with effect form 1 April 2009, that all Deputy Director: Agricultural Manager positions commence at salary level 11. A further resolution provided that those employees whose salaries were upgraded pursuant to the MEC’s approval, should remain on that level.

Mr. Gasa’s evidence was that the applicant’s post was evaluated at salary level 11 and advertised at that level. To move to salary level 12, he would have to be promoted. Another avenue to reach salary level 12 is through pay progressions.

Mr. Mokgotho’s evidence was that an employee on salary level 11 and 12 did not earn the same. To advance to a higher salary level would be through promotion, pay progression or upgrade. He did not lodge a grievance, as his promotion to salary level 12, was in the near future.

[36] Mr. Mogopodi’s evidence was that he was employed in the public service for a number of years. He applied for the position at salary level 11 and was appointed in 2012. In 2016/7 when he had discussions with colleagues about the job description and he discovered different salary levels, he did not lodge a grievance. It was only in 2018, when performance agreements were concluded, that he lodged a grievance regarding equal pay for equal work.

[37] In Pioneer Food (Pty) Ltd v Workers Against Regression (WAR) and others , this Court [per the late Anton Steenkamp J] held that pay differentiation on the ground of length of service and new appointment does not constitute unfair discrimination as an arbitrary ground. Further, that where the pay difference is contained in a collective agreement, it is not unfair.

The Court in Pioneer, the facts of which are on all fours with the present case, stated as follows:

‘[56] Where a collective agreement stipulates different pay levels for employees with different periods of service with the employer concerned, this is not arbitrary differentiation … nor is “length of service” (or being a “new employee”) an unlisted ground meeting the test just referred to.
[57] Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is, on the contrary, a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common. That the lawgiver shares the view that this is rational and legitimate is apparent, inter alia, from:

57.1 Regulation 7(1)(a) of the Employment Equity Regulations 2014, which includes “length of service” as one of the “factors justifying differentiation in terms and conditions of employment”;
57.2 Section 198D(2)(a) of the LRA, which includes “length of service” as a “justifiable reason” for differential treatment;
57.3 Clause 7.3.1 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value.

[59] Moreover, length of service with the employer concerned as a factor affecting pay levels is not an “other arbitrary ground”, as contemplated in section 6(1) or in the test laid down by the Constitutional Court. Treating people differently in the workplace in accordance with their length of service with the employer does not impair their fundamental human dignity or affect them adversely in a comparably serious manner. The unlisted ground proffered by the union in its heads of argument did not qualify. That too should have been the end of its case.

[61] But even on this broader interpretation, the differentiation between new entrants and longer serving employees is rational, sanctioned by collective agreement, and envisaged by the Code of Good Practice.’[Emphasis added].

[38] What is the arbitrary ground upon which Mr. Mogopodi relies, which impairs his dignity and is a barrier to equality?

As I understand his case, equal work for equal pay is premised on the “resolution” of 26 June 2008. This MEC’s approval was reversed and no longer existed when Mr. Mogopodi applied for and accepted his post at level 11. In 2009, a collective agreement / resolution in the sector to which Mr. Mogopodi belonged, determined salary level 11 as an entry level for his post.

This applied to all new entrants, including Mr. Nkosi and Mashamaite. Wilkens, Anthony and Shongwe were not appointed with Mr. Mogopodi. They were appointed on salary level 12 in 2008, long before Mr. Mogopodi was appointed.

[39] On the facts and based on the decision in Pioneer, the conduct that Mr. Mogopodi complains about is not irrational and does not amount to unfair discrimination. In view of the two legged enquiry in Harksen, in my view, the differentiation in salary levels is not objectively based on attributes and characteristics that have the potential to impair the human dignity of Mr. Mogopodi and others in his position to affect them adversely in a comparably serious manner.

The post occupied by Mr Mogopodi was evaluated at salary level 11 and it was advertised at that level. There is no evidence before this Court that the evaluation process was irrational or unfairly discriminatory.

The difference in salary levels and salary level 11 being at entry level, does not amount to unfair discrimination on an arbitrary ground.

Further, the impact of the differentiation on Mr Mogopodi and others in his situation, in my view, does not amount to unfair discrimination.

[40] In view of the afore-going, Mr. Mogopodi has not discharged the onus placed upon him.

Costs

[41] Section 162 of the LRA provides as follows in relation to orders as to costs:

‘162 Costs
(1) The Labour Court may make an order for the payment of costs, according to the requirements of law and fairness.’

[42] In Union For Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others the Constitutional Court re-emphasised the established rule that costs in labour disputes do not follow the result.

[43] Mr. Mogopodi is a pensioner. As stated in Union for Police Security, the rule against automatic costs orders ensures access of litigants to labour dispute resolution institutions to air their grievances. I am of the view that the requirements of law and fairness dictate that no order should be made as to costs

[44] In view of the afore-going, the following order is made:

Order

1. The applicant’s claim is dismissed.
2. There is no order as to costs.

Summary