Ndudula v Metrorail Prasa (Western Cape) (C1012/2015)  ZALCCT 12 ;  7 BLLR 706 ; (2017) ILJ 2565 (LC) (30 March 2017) per Coetzee AJ.
The LC declined to uphold a claim of alleged ‘unfair’ discrimination on an arbitrary ground as provided in EEA sec 6(1).
The employer erred in paying new employees more than existing employees on the same decision-making level. But the complainants failed to identify any “ground”, simply purporting to rely on the employer’s error and contending that it fell within a new third category of ‘grounds’. The LC held that parliament did not introduce a third category of grounds upon which employees could challenge the conduct of employers. The LC disagreed with the following opinion in Du Toit Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at 683:
“The reintroduction of the prohibition of discrimination on ‘arbitrary’ grounds cannot be understood as merely reiterating the existence of unlisted grounds, which would render it redundant. To avoid redundancy, ‘arbitrary’ must add something to the meaning of ‘unfair discrimination’. Giving it the meaning ascribed to it by Landman J in Kadiaka – that is, ‘capricious’ or for no good reason – would broaden the scope of the prohibition of discrimination from grounds that undermine human dignity to include grounds that are merely irrational without confining it to the latter.”
The judgment appears to ignore the binding effect of ILO Convention 111. The criterion in respect of an impugned ‘distinction, exclusion or preference’ on an unlisted ground as well as a listed ground is whether that measure ‘has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’. It is dealt with in detail in Du Toit at page 681 onwards.
Excerpts from judgment (without footnotes)
 The respondent with effect from 1 January 2014 promoted and appointed two more employees as section managers. The applicants were aggrieved because these two newly appointed section managers were appointed on a higher salary or scale of remuneration than that of the applicants.
 The applicants lodged three group grievances on 1 December 2014, 9 December 2014 and 27 January 2015. The grievances were not resolved and the applicants referred the matter to the CCMA on 5 August 2015.
 The respondent on 17 August 2015 by letter informed the two section managers that their salaries had been reviewed and that they had been appointed at an incorrect scale (the correction). They were further informed that their salaries were to be reduced to the correct scale effective from 1 September 2015.
 The parties further agreed as follows:
“This correction was implemented on the basis that the amount by which they had been overpaid would not be recovered from them, which decision was based on the fact that a precedent had been set when, in similar circumstances, employees, with the assistance of legal advisers negotiated a settlement on such basis with the respondent.”
 The applicants pleaded their discrimination case as follows:
“The Individual Applicants are performing the same work as the two newly appointed Section Managers and despite having longer years’ of service, they are being paid substantially less than the newly appointed section managers. The individual Applicants have been and are being discriminated against regarding the different terms and conditions of employment for a reason unknown to them. Whatever the reason are (sic) as may be advanced by the Respondent, the different treatment of employees who performs (sic) the same work and there being no other justifiable reasons for such differentiation amounts to an act of direct discrimination or alternatively to indirect discrimination. Newly appointed employees are enjoying more substantial terms and conditions of employment for no other reason (s) than that they are newly employed employees.”
 The applicants formulated the relief they sought as based on their cause of action as follows:
“The individual Applicants are seeking an order that the Respondent must remunerate them and provide to them the same terms and conditions of employment as the two newly appointed Section Managers retrospective to January 2014, as well as an order that all Section Managers must be remunerated on the same basis. Alternatively the individual Applicants are seeking an order that they be paid the difference in remuneration for the same period that the two newly appointed Section Managers were paid such a higher remuneration package. In the alternative, the individual Applicants are seeking compensation in an amount to be determined by the Court for having been discriminated against. The individual Applicants also seek an order that the Respondent must pay the individual applicant’s legal costs.” 
 During oral argument the applicants limited the relief they seek to payment of a lump sum as compensation to each of them. They pursued with their claim for a cost order in their favour.
 The respondent admitted that it appointed the two section managers at a higher salary scale. The respondent denied that the facts and circumstances pleaded by the applicants, amount to unfair discrimination as contemplated by the Employment Equity Act.
 The respondent’s defence became evident in the pre-trial conference. The pre-trial conference minute records that the applicants were advised that a mistake had been made in the salary scale at which the two section managers were appointed. The pre-trial minute contains no reference to the correction.
 According to the applicants they were advised of the correction only during January 2017. They submit that this should be taken into account for purposes of a cost order. Having been advised of the correction only shortly before the hearing, they resolved to pursue relief only in the form of compensation, coupled with a cost order.
 Having regard to the pleadings and the agreed facts, it is common cause between the parties that the two section managers were appointed by mistake on the higher scale and that approximately 20 months later with effect from 1 September 2015 the error had been corrected and the remuneration paid to them adjusted downwards.
 The factual position that is common cause between the parties, thus is that two section managers were appointed, in error, on a higher scale than that enjoyed by the applicants; the error was corrected with effect from 1 September 2015 and the additional remuneration that the two received while on the higher scale was not refunded to the respondent by them because of an earlier precedent that the respondent felt to be binding on it.