Irrational pay differentials: Unequal pay claim refused

Note: Footnotes omitted and emphasis added

Details of hearing and representation

[1]  The arbitration was conducted on 1 November 2017, 14 May 2018, 8 June 2018, 30 and 31 July 2018, 17 and 18 September 2018. The first two sittings were conducted at the CCMA National Office. The subsequent sittings were conducted at the premises of the respondent in Pretoria. During the arbitration, Mr Booysen Mashego, from Communication Workers Union, represented the applicants. Mr Kaya Ndonga, assisted by Charles Petersen represented the respondent.

[2]  The hearing was digitally recorded and typed computer notes were also taken during the arbitration hearing.

[3]  Parties submitted the following bundles: A, B, C, D, E, DF, EG, H, I and J.

Background to the dispute

In respect of the award, I will provide an overview of the parties and of the documentary evidence presented during the arbitration. Then I will provide a summary of the statement of claim and reply, whereafter parties evidence will be, summarised.

[4]  The respondent is the South African Post Office Limited (“SAPO”) a State owned company duly registered and incorporated in terms of section 3 of the Post and Telecommunication-Related Matters Act 44 of 1958 to conduct postal services as defined in the Postal Services Act 125 of 1998.

[5]  The applicant union is the Communication Workers Union a registered trade union duly registered in terms of section 200 of the Labour Relations Act 66 of 1995, as amended.

Who are the applicants in the current dispute?

[6]  Before dealing with the merits of the claim it is important just to understand the question “Who are the applicants in the current dispute?”

The applicants consisted of several groups, having referred different disputes:

6.1  The initial referral was made to the CCMA on 29 August 2017. In respect of this referral CWU alleged on behalf of its members that the Respondent was subjecting them to discrimination as prohibited by section 6(4) of the Employment Equity Act. It was alleged that the dispute arose on 7 August 2017 and as an outcome they were demanding: “the respondent must pay all the employees who are employed on same positions and performing same or similar task equally.1”
Since no name list was annexed parties agreed on 1 November 2017, that the matter be postponed sine die, in order to provide the applicant union an opportunity to finalise the name list and for parties to conduct a pre-arbitration meeting.

A name list was submitted on 11 April 2018. It contained the names of approximately 10632 employees, their respective job descriptions, and areas of work, employee numbers and monthly salary. By way of example the list indicated:

F Matras 90003145 Mail processor B2 Witpos R8 136,50
S Hlatshwayo 4000715 Mail processor B2 Witpos R7 587,17
J Afrikaner 02887185 Mail processor B2 Upington R11 175

The following job categories were provided for in the breakdown:

Mail Processor B2, Mail Supervisor, Transport Assistance B2, Transport Supervisor C2, Transport Chief Supervisor, Drivers L1, Driver L2, Driver L3, Revenue Protection C1, Postman, Postman B2, Postman Apprentice, Chief Teller C1, Teller, Teller B4, Teller Apprentice, Branch Manager C4, Postal Assistant, Process Supervisor C2, Administrator, Data Controller, Branch Manager LD, Performance Inspector.

The employees worked in different geographical areas throughout South Africa.

[7]  The initial list was subsequently supplemented with the names contained in bundles: “C”, “E” (the parcel freight employees), “EG” and “H”.

[8]  Bundle “B”, contained pay slips for some of the Postmen B2 (pp1–53), Mail Processor B2 (pp54–120), Transport Assistant B2 (pp121–131), Transport Assistants B2 (pp121–131), Process Supervisors C2 (pp132–143), Tellers, Chief Tellers and Branch Managers (pp144–189), Pay slips of Drivers L1, L2, L3 (pp190–205), Pay slips for Postal Assistants A1 (pp211–218), Data Performance Controller B4 (pp219–221), Administrators (pp222–224) Revenue Protection Officer C1 (pp225–308).

[9]  Bundle “DF”, contained a breakdown in respect of the employment history of only 40 employees.

[10]  By way of example the following historical breakdown for Tryphina Dlagalala, a Mail Processor B2, working at Witpos was provided:3

Start Date End Date P5 Group Level Amount
01.04.2018 31.12.1999 [sic] B2 Ent N3 R9937.34
01.09.2016 31.03.2018 B2 Ent N3 R9330.84
01.04.2016 31.08.2016 B2 Ent N3 R7587.17
01.12.2014 31.03.2016 B2 Ent N3 R7124,05
14.05.2014 31.11.2014 B2 Ent N3 R6689.25
01.07.2012 13.05.2014 B2 X4 R9764.00
01.01.2012 30.06.2012 B2 X4 R9211.25
01.07.2011 31.12.2011 B2 X4 R9125,92
01.07.2010 30.06.3011 B2 X4 R8528,89
01.07.2009 30.06.2010 B2 14 R7332,56
01.07.2008 30.06.2009 B2 14 R6983,39
01.01.2008 30.06.2008 B2 14 R6305,54
01.09.2007 31.12.2007 B2 14 R6274,17

From this breakdown one was able to establish that Ms Dlagalala was dismissed in 2014 and later re-employed. At her return in 2014, her salary was paid at the B2 Entry level being R6 689,25. She then benefited from wage increases on 1 December 2014 and a further adjustment on 1 April 2016. On 1 September 2016, her salary was adjusted to a level of R9 330,84. (See settlement agreement marked “J”, signed by Clyde Mervin, the President of CWU, on 12 September 2016).

The historical background consisted of two further pages confirming employment progression – examples such as promotion, transfers, whether the employee was formally employed by a Temporary Employment Service/Labour Broker or if the employee was converted from Casual to Permanent.

[11]  Based on the information contained in “DF”, the salary paid to Ms Dlagalala’s salary details were compared with the salary income for the following Mail Processors:

Initial and Surname Appointment Date Salary on 31 March 2018
ME Lock 1 August 1994 R9,294.00
IE Matsheka 1 May 2008 R8,726.70
TA Kunene 14 May 2014 R8,605.50
MM Madibana 15 May 2014 R8,593.08
DSP Vinger 1 May 2008 R8,909.68
ME Kali 1 May 2008 R8,605.50
BE Langa 14 May 2014 R8,136,50
KA Mogano 1 May 1996 R9,294.00
S Muller 3 February 1992 R9,269.25

Similar breakdowns were provided on 17 September 2018, for a further 14 employees, as setout in bundle “EG”. As such the employment history detail of only 54 out of all the applicants were provided during the arbitration hearing.
Statement of claim/statement of response to claim

[12]  In its statement of claim and response it was stated:

1.  The applicants consist of different groups. Some of which are involved in sorting of mail and others involved in the delivery of the mail.
2.  In February 2013, some workers embarked on unprotected strike and were subsequently dismissed. Through the intervention of COSATU, the 588/620 employees were re-employed in terms of a settlement agreement signed by the COSATU and the respondent, on 20 January 2014. The re-employed employees were appointed at levels lower than the levels occupied prior to their dismissals. Later salaries were adjusted in September 2016. The applicant’s claimed the re-employment of staff at lower levels resulted in pay differentials.
3.  Some employees were previously employed by Temporary Employment Service Providers (“TES”), and placed with the respondent as casual employees. Subsequently, the respondent directly employed the employees on fixed-term contracts until they were permanently employed from 4 April 2014.
4.  The respondent further submitted in 2012 it stopped making use of employees referred to as Labour Brokers (casuals). In 2016 these employees, were appointed permanent, now earning at the same base rate as permanent staff. This group of employees however only work on a part-time basis working 21,5 hours per week as apposed to 42 hours per week worked by full time staff.
5.  On 7 July 2016, the respondent, CWU (the applicant-union), South African Postal Workers Union and Democratic Postal and Communications Workers Union, entered into a settlement agreement dealing with the principles of equal pay for work of equal value – which included the correction of salary disparities:4

(a)  In respect of clause 7 of the said agreement, parties in fact recorded their agreement pertaining to Equal Pay for work of Equal Value.
(b)  It was agreed that it would be dealt with in two phases, with phase one focusing on Management levels.
(c)  The second phase as per clause 7.3 was to require the development of target salaries per rank to establish movement of target dates. A task team consisting of recognised Trade Union representatives and SAPO was to be developed and approach and implementation plan to ensure that implementation would start on 1 April 2017 [sic].
(d)  In paragraph 7.4 it was agreed that the task team was to make presentation and recommendations in this regard during the 2017/2018 substantive negotiations.

6.  The respondent conceded that there are salary differentials within the salaries paid to employees. The respondent, however, disputed that this was as a result of any discrimination on any listed or arbitrary ground, or that such ground had been disclosed and or pleaded by the applicant party. The respondent argues that the salary differentials are largely based on the number of years the employee was employed, with those having been in its employ longer earning more than those with shorter years of service. Some differentials also existed because of errors when the “casuals” were absorbed into permanent positions. Some of the HR practitioners of the respondent erroneously appointed some “casuals” at scales slightly higher than the normally applied scale.
7.  The respondent denied that pay differentiation was linked to union affiliation as alleged by the applicants’ Union.
8.  The respondent took issue with the date of referral and stated the dispute was not referred within 6 months of the date or omission of the alleged discrimination. In this instance it is evident that the pay differentiations go as far back as 2012, 2013 and 2014.

[13]  As indicated above the respondent conceded from the start that pay differentiations existed within its employ, but disputed the allegations that this was brought about as a result of discrimination on an arbitrary ground as alleged, in the broad, by the applicant Union.

[14]  It is this dispute pertaining to the allegations of unfair discrimination that forms the basis of the current award.

Issue to be decided

[15]  I must determine, on a balance of probability, if the applicants have been subjected to discrimination on the grounds of equal pay for equal value –arbitrary ground. In determining this I must consider if the applicant can prove on a balance of probabilities that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair. [If] I find that the applicants were subjected to unfair discrimination I must determine the appropriate remedy, if I find they were not then their claim will be dismissed.

[16]  In answering this question I am mindful of the time period stipulated in section 10(2) of the Act, which provides that any party to a dispute concerning discrimination may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.

Survey of evidence and argument

[17]  I will only record the part of the evidence and/or argument that I deem necessary for purposes of determination of the issues.

Case for the applicants

The evidence of Mr R Mulaudzi (hereinafter “Mulaudzi”), an official of CWU and former employee of the respondent, Mr R Efalao (hereinafter “Efalao”). Mr I Valashiya (hereinafter “Valashiya”).

[18]  After the 2012 strike, striking employees were converted into permanent employees. Already at that point in time pay differences were recorded. Another strike followed in 2013. On this occasion the respondent dismissed the employees until COSATU intervened. It was agreed staff would be re-employed and that no one would be disadvantaged in the process. Employees were back at work on 5 May 2014. Once back at work staff realised they were being paid less than before the strike. People were re-employed on different salary scales. No explanation has been provided for these differences.

[19]  With reference to Dlangalala, it was highlighted she earned more than other mail processors who had not been on strike, such as Lock who was employed from 1 August 1994. At the same time she was also earning more than Kunene and Madibana, who had been employed in May 2014. Langa and Kunene were both employed on 14 May 2014 yet; the one was earning R8 593,08 and the other R8 136,50. Mogano was employed from May 1996 and Muller from February 1992, yet Mogano was earning R24,05 per month more than Muller. On this basis he disputed the version of the respondent that salary paid to staff was influenced by years of service.

[20]  This trend of anomalies was also found amongst Postmen. For example Mr Manual, Mathebula, Selele and Morake were all employed from 1 September 2012, each on his own salary. Mr Manual for instance was remunerated at R7 323,92, whereas Mathebula was paid R6 844,75 per month. Mr Mchunu, employed on 4 April 2012 was earning R7 019 per month, even though he had been longer in the respondent’s employ than Manual. Mulaudzi pointed out several disparities in the salaries earned by the list of applicant’s set out in “DF”.

[21]  He was of the opinion that the only way of dealing with these anomalies was for the respondent to increase the salaries of each employee, to the highest salary paid to any one individual in an occupation category.

[22]  Efalao, started working for the respondent on 1 September 2012, after he was employed by a Temporary Employment Service and placed at the respondent. His salary as a Postman at 1 April 2018 was R9 555, 01. He pointed out that his colleague Mr Ntholoanong, who was performing the same functions as he was, was earning R10 128, per month. He felt it was unfair, but was unable to motivate what caused the difference of R572,99 per month or why it existed. He also pointed to the fact that Mr Seroke was earning less than himself at a monthly salary of R8 900. Again he was not sure why. He also referred to the salary of Mr Musobi,5 who earned R8 384,92 and to Mr Xhamani,6 who earned R8 909,59 per month, and Mr Mtimkulu7 who earned R8 384,92 per month.

[23]  Mr Valashiya, confirmed he was employed by CFJ. The operations of CFJ transferred to the respondent in terms of section 197 of the Act in September 2016. He testified his understanding of the transfer was that they would benefit from working for the respondent in that they would be entitled to receive the same benefits as the respondent’s staff such as housing subsidies, better benefits in respect of family responsibility, better working hours and ultimately also better salaries. Their salaries have however not been adjusted in line with the salary scales applicable to the respondent’s other permanent employees. He testified Mr. James Ramatibe was earning R11 089,20 and he, Mr Valashiya was earning only R9 189 per month.

Case for the respondent

The respondent called Mr M Rhoode, ER Manager – Northern Region (hereinafter “Rhoode”), and Ms S Sibanyoni, a remuneration analysis (hereinafter “Sibanyoni”) was called to testify.

[24]  After COSATU intervened; employees were re-employed at the entry pay level of their occupation. At a subsequent scheduled CCMA sitting, the President of the CWU, Mr Clyde Mervin, approached him and requested that the salary scales of the employees be adjusted in line with an earlier proposal made to CWU by the Executive: Human Resource. Rhoode obtained a mandate and subsequently he and the President of the CWU signed the document marked “J”. Salaries of the re-employed employees were accordingly adjusted on 1 September 2016 in line with the agreement concluded with CWU.

[25]  Mr Rhoode also confirmed the conclusion of the 7 July 2016 substantial agreement to which CWU was a signature. He confirmed in terms of clause 7 a Task Team was appointed to consider the anomalies pertaining to salary differences and at the 2017/2018 substantive negotiations the respondent was only in a position to offer a 0% increase [sic], due to financial constraints. He testified during negotiations the respondent tabled a phased in approach to deal with the anomalies that existed but Labour wanted an immediate correction something the respondent could not concede to.

[26]  With regard to CFG, he stated it was in liquidation, and it could no longer pay its financial obligations. At this point in time a section 197 transfer took place and the 600/700 employees from CFG transferred to the respondent. In terms of paragraph 3.3 of “bundle I”, the parties agreed the employees would have been transferred with the remuneration at the rate of their existing salaries, at the time of the transfer.

[27]  Ms Sibanyoni, assisted with providing an interpretation of the employment history for employees such as Tryphina Dlangalala and the movement recorded for her on the SAP payroll system. She confirmed Ms Dlangalala was dismissed, later re-employed at a lower level and that Ms Dlangalala benefited from an agreement with CWU whereby her salary was increased from 1 September 2016. This benefit was not only given to Ms Dlangalala but was also given to the other 588 employees re-employed by the respondent. She explained in terms of the agreement, an employee’s salary was increased by calculating the value of the difference between the salary earned prior to the dismissal and the level appointed after. This value was then divided in half and the difference added to the employees’ salary at the time. As such people were earning different amounts within the respective bands.

[28]  She testified, analysing the data, that salary anomalies were created by a number of factors such as promotions, external appointments, years of service and that it was impossible to state one reason for all differences. Each case had to be analysed and explained on its own merits and one could not merely work on the monthly salary earned to establish why anomalies existed. For instance she pointed out that some staff worked less hours than others, which could also influence their income – such as the S32 workers.

Analysis of evidence and argument

[29]  Section 9(3) of the Constitution of the Republic of South Africa provides:

“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”.

[30]  Section 9(4) of the Constitution provides:

“No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.”

[31]  Grogan, J “Dismissal” Juta 2014 edition at 137 observes “discrimination”, in its neutral sense, arises when an employee is treated differently from his or her colleagues in circumstances, which on the face of it; indicate that the employee should not be treated differently.

[32]  Article 1 of ILO Convention 111 concerning discrimination in respect of employment and Occupation defines “discrimination” as including;

“(a)  Any distinction, 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 in treatment in employment or occupation.” [Emphasis added.][33]  ILO Convention 100 concerning Equal Remuneration, obliges ratifying Member States to give effect to the principle of equal pay/remuneration for men and women workers for work of equal value.

[34]  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 a listed or on any other arbitrary ground in terms of section 6(1) of the Act.8

[35]  The Code of Good Practice on Equal Pay / Remuneration for work of Equal Value (the “Code”), published under GN448 in GG38837 dated 1 June 2015, aims to encourage employers to manage their pay/remuneration policies, practices and proper consultation processes within a sound governance framework in order to drive and maximise on the principles of equal pay/remuneration for work of equal value that is fair, free from unfair discrimination and consistently applied.

This is done by the employer having to ensure that pay/remuneration policies and practices are applied consistently without unfair discrimination on the basis of any one or combination of the listed or on any other arbitrary grounds.9

[36]  The Code promotes the elimination of unfair discrimination in respect of pay/remuneration by applying the principle of equal pay/remuneration for work of equal value10 and places a duty on every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.11

[37]  Section 5 of the Employment Equity Act 55 of 1998, (the “Act”) places a duty on employers to take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any employment policy and practice.

[38]  Section 11(2) of the Act, provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:

(a)  The conduct complained of is not rational;
(b)  The conduct complained of amounts to discrimination; and
(c)  The discrimination is unfair.

Disputes pertaining to discrimination: equal pay/remuneration for equal value

[39]  Section 6(4) of the Act, which came into effect on 1 August 2014, specifically 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.

[40]  Regulation 4, in the Code, places a positive duty on employers to eliminate unfair discrimination in respect of pay/remuneration. This is done by the employer taking steps to eliminate differences in terms and conditions of employment, including pay/remuneration, of employees who perform the same or substantially the same work or work of equal value that are directly or indirectly based on one or more listed or on any other arbitrary ground.

[41]  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.12

[42]  The Code in essence deals with two key aspects.

• The first is the employer’s obligation not to unfairly discriminate, which is in line with its obligation under section 5 of the Act.
• The second part of the Code, as set out in regulation 3.8 read with section 27 of the Act, requires designated employers to report on the pay/remuneration and benefits received by employees in each occupational level of their workforce, and where there are disproportionate income differentials or unfair discrimination by virtue of a difference in terms and conditions of employment, it places an obligation on employers to take steps to progressively reduce these differentials.

[43]  When examining whether the obligation to apply pay/remuneration equity in the workplace is being complied with, three key issues require scrutiny:

1.  Are the jobs that are being compared the same, substantially the same or of equal value in terms of an objective assessment?

This is answered by considering four basic criteria, which include:

• • (a)  The responsibility demanded of the work, including responsibility for people, finances and material;
  • (b)  The skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal;
  • (c)  Physical, mental and emotional effort required to perform the work;
  • (d)  The assessment of working conditions.13

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?

In answering this question regulation 8, of the Code proposes a methodology to be followed. Regulation 8.1.6 provides that one should select a method of comparing pay/remuneration, both in money and kind, in the relevant jobs: this can be done by using either the average or the median earning of employees in the relevant jobs as the basis for pay/remuneration comparison or by using another method that will compare pay/remuneration in a fair and rational manner.

3.  If there are differences in the terms and conditions of employment, can these be justified on fair and rational grounds?14

[44]  However when dealing with the allegations of unfair discrimination, it is recognised that 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 unfair discrimination if the differentiation is not based on a listed or on any other arbitrary ground in terms of section 6(1) of the Employment Equity Act, as amended15 and where unfair discrimination is alleged on an arbitrary ground the applicant party will bear the burden of proof, as setout above.

[45]  Further to that regulation 7.3 of the Code provides 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 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;
7.3.7  any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the Act.

[46]  The employer is required to ensure that unfair discrimination does not occur during the stage when jobs are being evaluated and/or graded in accordance with its pay/remuneration philosophy.16

[47]  Where unfair discrimination is alleged on an arbitrary ground, such as the case before the Commission, then a three tier enquiry is envisaged, as set out in section 11(2) of the Act, in respect of which the applicant bears the onus.

47.1  Is the conduct complained of not rational?

47.1.1  The following evidence was considered to determine if the conduct complained of was rational or not:

47.1.1.1  Mail Processor

1.  The salary differences between Dlangalala and Lock was not irrational alternatively the evidence placed before me was insufficient to make a finding that the pay difference was irrational, bearing in mind that on 1 September 2007, Dlangalala at the time was earning R1 264 more than Lock. In 2018 Dlangalala was earning only R39,23 per month more than Lock. The earlier difference was eroded by the fact that Dlagalala was dismissed in 2014 and on reemployment paid substantially less than before her dismissal. I have also accepted that Dlangalala’s salary was positively adjusted in an agreement to this effect entered into between applicant union and the respondent.
2.  Matsheka, Vinger and Kali were all appointed on 1 May 2008. Matsheka and Kali were both promoted on 1 September 2012, from R3 670,58 to R7 090,67 and in August 2016, when Vinger was promoted her salary increased to R8 909,68, the applicants Matsheka and Kali at the time were both only earning R8 605,50. This was found to be irrational.
3.  Kunene, Madibana and Langa were re-employed from 14/15 May 2014. However, all three worked for the respondent before and they like Dlangalala were dismissed and re-employed in May 2014, at the level R6 689,25. Their salaries were also adjusted in September 2016, in line with the CWU agreement, taking into consideration the salary levels prior to dismissal, which was less than the salary earned by Dlangalala. The differences existed prior to September 2007. No evidence was placed before me why the different salaries earned at 1 September 2007 were irrational.
4.  Kanyile was employed in 1983, Mhlongo in 1982, and Nthombela in 1991, however all of them were dismissed and re-employed on the basic salary of R6 689,25 with their salaries having been adjusted on 1 September 2016. On 31 March 2018 they were all earning R8 136,50. Mgalo and Modise were earning R7 587,17 after they were also dismissed and re-employed on the basic salary of R6 689,25. No irrational conduct was proven.
5.  Mogano was employed from 1 May 1996 and earned the same as Dlangalala. Muller was appointed in 1992, and was earning, R25 less than Mogano and Dlangalala. Muller was however earning less than Dlangalala from September 2007. There was not sufficient evidence placed before me to show that the said conduct complained of from 2007 was irrational.
6.  Posthuman worked for the respondent from July 1989, and was currently earning the highest salary, with no break in service. Nothing irrational was proven with regard to the income earned by Posthuman in comparison to the salaries earned by the other Mail Processors. The differentiation fell squarely within the ambit of the provisions of Regulation 7.3.1.
7.  Cheffiar and Thaba both started in 1987, and on 31 March 2018, they were earning R10 271 each.
8.  Taolo, Rangu and Efalao were employed from 1 September 2012. On 31 March 2018, Taolo earned R8 118,42, Rangu R8 384,92 and Efalao earned R8 971,84. In comparing their employment paths I found a Labour Broker initially placed all three. In November 2012, Efalao’s status changed to permanent and thereafter in August 2017 he was transferred to a different site. Taolo only became a permanent fulltime employee in December 2014, whereas Rangu became permanent in September 2014. The difference earned between Taolo and Rangu is however found to be irrational, bearing in mind the short period in which they converted.
47.1.1.2  Postman
1.  Selele and Manual, were employed from 1 September 2012, and placed via the TES. Mchunu was also employed in 2012 and also placed by the TES Then on 31 October 2013, Selele and Mchunu were converted from casuals to permanent and on 1 August 2016, their employment status changed from permanent part time employees to permanent fulltime employees. Resulting in both of them earning R8 971,99 as at 31 March 2018. Manual who converted from S32 to permanent part time, and then to permanent fulltime in December 2014, was however only paid R7 323,92, as at 31 March 2018. This would appear to be irrational conduct.
2.  With them were also Mathebula, Morake and Mabuza all who started on 1 September 2012, via the TES. Mathebula and Mabuza converted to permanent on 1 August 2016. Morake only converted to permanent on 31 August 2016. On 31 March 2018, Mathebula was earning R6 844,75, Morake R 4030.29 and Mabuza R4 292,24. This appears to be irrational conduct, as they had followed similar employment paths and had the same or similar length of service.
3.  With them was an employee Mohale, who started on 1 January 2007, earning a salary of R10 938,62 per month. Mohale was employed directly by the respondent and there was no break in service. This was also true for Coetzee, who was employed since 1987. This differentiation also falls squarely within the ambit of regulation 7.3.1. Nothing irrational was proven in respect of these two employees.
47.1.1.3  Processor Supervisors
1.  Benjamin, Mudau and Mothoa, were employed from September 1995, their services were terminated in March 2013, and they were re-employed in May 2014 at the entry salary of R6 689,25. From 1 September 2016 their salaries were adjusted when they were promoted to the level C2 and on 31 March 2018 they were earning R13 644,54 per month.
2.  Roodt, was employed from 1 December 1983. He was promoted in May 2013, to the level of C2 and was only earning R13 614,09. It is irrational for him to earn R30,45 per month less than Benjamin, Mudau and Mothoa.
3.  Kramer worked from 1990 and on 31 March 2018, he earned R15 585,42 per month. This differentiation falls squarely within the ambit of Regulation 7.3.1, and there is no evidence that the decision to pay him more is not rational.
47.1.1.4  Teller
1.  Lategan and Letsipa started working for the respondent in 1980 and 1986 respectively, on 31 March 2018 they both earned R12 271,17 per month.
2.  Tshabangu who started in 1997 was earning R11 358,59 on 31 March 2018.
3.  Mathebula who started in 2007 was also earning R11 358,59 and Dukisa who started in 2012 was earning R9 272,84 per month. There was no evidence of any irrational conduct in respect of any of these salaries.
47.1.1.5  Driver
1.  Seller and Pieterse were both L3 drivers and earned the same salary as at 31 March 2018.
2.  Daniels and Baloyi were both L2 drivers. On 31 March 2018, Daniels earned R11 849,84 and Baloyi R9 673,75 per month. Daniels, however, started working for the respondent in February 1982 whereas Baloyi only started through a Labour Broker in 2012. There was no evidence of any irrational conduct.
47.1.1.6  Postal Assistant
1.  On 31 March 2018, Booysen and Jasson both earned R6 844,84 per month. They both started working for the respondent on 5 September 2012. Mashapa who had been working for the respondent since July 1996 was earning R8 384,50. There was no evidence of any irrational conduct.
47.1.2  In the limited instances above the applicants had shown that the conduct of the respondent in paying certain employees different salaries for performing the same work was in fact irrational.

Conclusion

47.1.3  During the enquiry it was evident that each employee’s employment history influenced the salary tabled in bundles “C” and “EG”, and that without a breakdown and proper analysis of the breakdown any finding on the anomalies that might exist would be pure speculation. In respect of the remainder of the applicants I find that the applicants, for whom no breakdown was provided, were unable to discharge the onus to show the conduct complained of was irrational.
47.1.4  In the limited instances set out above it was found that the applicants were able to prove that the conduct complained of was not rational.
47.2  Does the conduct complained of amount to discrimination?
47.2.1  To answer this question it would require an understanding of the context and the reason for the differential treatment together with the impact it might have on an individual or a group.

47.2.2  Section 6 of the Act provides no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice. Section 1 of the Act, includes within the definition of employment policy or practice, policies relating to remuneration, employment benefits and terms and conditions of employment.
47.2.3  In Harksen v Lane NO and others 1998 (1) SA 300 (CC) [also reported at 1997 (11) BCLR 1489 (CC) – Ed] the test for discrimination was set out. It asks the following questions:

• 50.2.3.1  Has there been differentiation between people, or categories of people?
  50.2.3.2  If so, does that differentiation amount to discrimination? It will be discrimination if the differentiation is on either a listed or an arbitrary ground.
  50.2.3.3  if so is the discrimination unfair?

In respect of the first question, it was already found that differentiation existed. This leads us to question whether the differentiation would amount to discrimination. In considering this question, it is important to identify and understand the reasons alleged by the applicants why they have been treated differently.

In the current dispute the applicants merely argued that the ground was arbitrary. As some alternative union affiliation was stated, but the evidence indicated union affiliation played no role in the salaries paid to employees. Another angle that was not strongly pursued related to geographic location, but even on this leg, the evidence did not support such statement.

The only remaining principle “ground” put forward was “arbitrary ground”.

47.2.4  In Ntai and others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) [also reported at [2001] 2 BLLR 186 (LC) – Ed], the Court highlighted the importance of “getting over the first hurdle” being able to identify an “arbitrary ground”. It held that the applicant having failed to state or identify the specific unlisted ground upon which they allegedly have been discriminated against, resulted in them failing to cross the very first hurdle to establish discrimination on an unlisted ground.
47.2.5  During the current arbitration, no attributes were identified by any of the witnesses, or by the representative that had the potential to impair the fundamental human dignity of the applicants as a group or as individuals. There was no evidence that work had been undervalued in any manner or form. In fact, the groups of employees grouped together were so diverse themselves that one has to wonder about the logic of grouping them together in a claim of alleged discrimination. No direct or indirect link between the payments made to staff and the staff themselves had been established during the arbitration.
47.2.6  In DM Sethole and others v Dr Kenneth Kaunda District Municipality,17 the Labour Court held the mere differentiation does not constitute discrimination; what constitutes discrimination is an impermissible differentiation.
47.2.7  As such I accept that there was differentiation, in that not all employees were paid at the same rate, however the applicants failed to discharge the onus of proving on a balance of probabilities that the conduct complained of amounts to discrimination.

It would appear that the applicants were using a dispute under Chapter I of the Act, to move the respondent to “comply” with its obligation under section 27 of the Act, to deal with income differentials.

[48]  Having found that the applicants were not able to prove that the conduct complained of amounts to discrimination. This will be the end of the applicants dispute before the CCMA.

Requirements of section 10(2) of the Act

[49]  The Act requires that any dispute concerning Chapter I of the Act, must be referred within 6 months after the act or omission that allegedly constitutes unfair discrimination. If the dispute was referred after such time period, the CCMA has the powers to condone the late referral of a dispute.

[50]  When challenged pertaining to the date of the alleged act of discrimination the applicants argued the dispute was ongoing in nature.

[51]  In Parliament of the Republic of South Africa v CCMA and others,18 Tlhotlhalemaje J, held disputes do not for the purposes of compliance with applicable legislative time limits continue from nowhere. He stated “A dispute cannot simply be ongoing form [sic] nowhere”.

[52]  In the main referral, of the current dispute, it was indicated the dispute arose on 7 August 2018. Even though I am mindful of the fact that a referral form is not considered to be pleadings, there was no evidence placed before me that any act of discriminatory took place on this date as alleged by the applicant party.

[53]  The evidence rather supports that differences in actual salaries paid to staff had a long history, going back and involving strikes, the resolution thereof, the re-employment of staff, further settlement agreements signed by the very union that referred the dispute.

[54]  Therefore even if I were to accept that each month a new “act of discrimination” arose under section 6(4) of the Act, in the current dispute nothing turns on it, as I have already found that the applicants did not discharge the onus as set-out in section 11(2) of the Act.

Award

[55]  I hereby rule that:

1.  The dispute referred to the CCMA by the applicant union CWU on behalf of its list of members, in terms of the Employment Equity Act is hereby dismissed.

[56]  There is no order in respect of costs.