Seniority justifying differentials: Valid rational reason?

Note: Footnotes omitted and emphasis added

Background, venue and representation

[1] The arbitration was set down for hearing on 22 and 23 August 2018 at the CCMA in Durban. The applicant was represented by Mr Mkhwanazi from AMITU and respondent was represented by Mr Coetzer from GEO (employers’ organisation).

Issue

[2] The applicants have lodged a dispute in terms of section 6(4) of the Employment Equity Act, (equal pay for work of equal value). It is alleged that the respondent has discriminated against various members in various categories of work on an arbitrary basis, in regard to payment for work performed.

[3] 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.

Submissions and evidence

[4] In light of the fact that the applicants have alleged discrimination on an arbitrary basis, the applicants bear the onus set out in paragraph 3 above. As such the applicants have the duty to begin.

[5] Mr Mkhwanazi made an opening statement. Applicants’ case is based on unfair discrimination for not paying workers of the same grade the same rate, for doing the same work. He made reference to the respondent’s bundle “A13” which showed an employee (SS Dlamini) employed in 1990 and earning R42,12 per hour. He also referred to employee T Nene employed in 1997 earning R40,45. He referred to V Nkosi employed in 1991, earning R39,43. The gap between the last two is 6 years service and the rate difference between them is just over R1 per hour. He made reference to B Madlala employed in 1994 earning R40,42. There is a 3 year service gap between him and Nene. He made reference to E Nzama employed in 2004, earning R39,43, earning the same as Nkosi who was employed 13 years earlier. He made reference to V Nkosi employed in 1991 who earned R39,43 and compared his rate with T Nene employed 6 years later in 1997, and who earned R40,45 ie higher than Nkosi who earned R39,43.

[6] He said that the respondent’s version that the differentials were occasioned by differing lengths of service did not make sense.

[7] He then made reference to employees who were employed in 2014, and whose details appear on “A13”. He said that the category of workers employed in 2014, labelled as general workers, were those who were suffering the most serious discrimination because there was a R15 hourly difference between their rate and the rate of those employed before 2014. He said that they were categorised as general workers but were doing the same jobs as those employees referred to above, all of whom were employed before 2014 ie between 1990 and 2004. K Mhlongo was employed in 2014 but was paid R23,59, being some R15 difference between the highest paid worker in the pre-2014 era ie S Dlamini, earning R42,12. He is labelled as a bakery worker, whereas Mhlongo is labelled as a general worker, but essentially they are doing the same job.

[8] Mr Coetzer intervened at this point and conceded that a bakery worker and a general worker were essentially the same job description ie they did the same work.

[9] Mr Mkhwanazi said even in the post-2014 category there were people who earned the same rate but had service differentials of 4 years.

[10] There was another group of employees known as driver/sales. However, he did not have any detailed information or wage slips available for either of these two groups and I indicated that they would have to form the basis of a separate dispute.

[11] He then referred to a separate group of workers at “A14” ie operators. He made reference to T Funeka employed in 1997, who earned R41,16, whereas all the operators indicated beneath him on the list at “A14” and who were also Operators, earned R27,83. One of them, No. 72D. Kunene, was employed in 2017 but earned the same as those employed 3 years earlier.

[12] He said that if the respondent conceded that the above described differentials existed, then it had to explain the differentials and adjust them accordingly.

[13] Mr Coetzer responded by making an opening statement. He said the applicants had not established the ground upon which the allegation of unfair discrimination was being made. He said that it was common cause that there were wage differentials but said that it did not amount to discrimination and that there were justifiable factors as understood by regulation 7. He said that the differences were fair and rational and were based on length of service, seniority and other similar factors.

[14] He conceded that the category of general worker and bakery worker were effectively the same categories and said that it was essentially length of service which explained the differentials, and disputed that there was any form of discrimination.

[15] The general workers employed after 2014 all earned the same rate ie R23,59, whereas the bakery workers, who were employed between 10 and 24 years earlier, were paid between R39,43 and R42,12. He said that in 2014 there had been insourcing of temporary employment service employees, which was done in consultation with the union.

[16] The union then called its first witness, in compliance with its duty to discharge the onus placed upon it in terms of section 11(2) of the EEA. Mandla Ngidi testified. He was employed in November 2014. Before this he had worked for a broker by the name of Alpha and Omega, for 2 or 3 years, on site at the respondent’s premises. He and about 200 others had been told to resign from the TES ie Alpha and Omega, and some of them were subsequently employed by the respondent. His rate per hour is indicated as R23,59. When he was with the TES, his salary was about R11,68 per hour, and on being employed it went up by about R15.

[17] He believed that he was being discriminated against in terms of his rate of pay.

[18] A second group of employees from Alpha and Omega were employed by the respondent in 2016, and they were paid at a similar rate to the employees employed in 2014. There were employees who came in 2017 and 2018, but earned the same as he did, and he was employed in 2014.

[19] He made reference to the group of 15 employees who were employed before 2014 ie No. 2 and No. 14 V Nkosi and J Shozi. Nkosi was employed in 1991 and Shozi in 2004, ie a difference in years of service of some 14 years, yet they were paid the same. He said that therefore the respondent’s argument that differentials were based on years of service did not make sense.

[20] He said that his understanding of the job that he was doing as a loader, was the same as a general worker and bakery worker, and he earned the same as a bakery worker. There was no difference between the 3 categories. His payslip now indicated that he is a loader, at the rate of R23,59. When he had signed the contract with the respondent in 2014 he was described as a general worker, and was then changed to being a loader. In 2017, he signed another contract, and was labelled a loader. He was called on from time to time to do general worker duties.

[21] In cross-examination, he was asked whether he had been part of the retrenchment negotiations and the CCMA case concerning retrenchment. He agreed that he had been paid severance pay when he left the TES ie that he had been retrenched in 2014. He agreed that about 200 employees had come across from the TES to the respondent in 2014. He was asked if he believed it would be fair if the respondent had reduced the rate per hour of those long standing employees, and he said that it would be unfair. It would also be unfair if they did not get increases. He said that it was unfair for the two groups to be paid differently.

[22] It was put to him that the respondent had dealt with the employees fairly and that there had never been any intention to discriminate against them.

[23] In re-examination, and in response to a question by the Commissioner, he said that bakery workers, general workers and loaders all worked inside the bakery. It was put to him by the respondent’s representative that there were no loaders in production and that they only worked in dispatch. The respondent’s representative put it to him further that in an EEA dispute, there had to be a comparator from the same group, and that in this instance, he was comparing a loader with a general worker, which was a different group. The witness replied that the loaders worked in the production area with general workers and were therefore from the same group. The matter was adjourned at 3:30pm until the following day, 23 August, for further evidence.

[24] The next witness called on behalf of the applicants was V Nkosi, whose details appear on “A13” ie a bakery worker employed in 1991, earning R39,43 per hour. He is part of the group of 15 employees employed before 2014. There are differentials between him and his 15 colleagues. For example, E Nzama who was employed in 2004, is paid at the same rate as he is. He was not aware of the reasons for these various differences, and length of service did not seem to be the reason for the differences, because he had 13 years more service than Nzama and yet they were paid the same rate.

[25] In cross-examination, he said he had 27 years service. He had started his career in Newcastle and then moved to Mobeni, and then to Pinetown, in 2002. If one branch closed down, workers would be absorbed by another branch. That is why he was moved to Pinetown from Mobeni. He agreed that it would not be fair if his rate of pay was reduced when he moved to a new branch.

[26] He said that it would not be fair for his salary to have been reduced when the ex-TES employees were employed in 2014, or for him to have been denied annual wage increases. He agreed that he had guided and assisted the new employees as they were employed. He agreed that it would be fair that the respondent valued his experience and long service. He did not know why he was paid more than the ex-TES worker, and only the respondent could explain that.

[27] The next witness was Mr Mbokazi, also from the same group of employees employed pre 1994. He was employed in 2004, and earned the same as the previous witness who was employed in 1991 ie R39,43 per hour. He is a general worker in the bakery.

There is no difference between a general worker and a bakery worker.

[28] He noted the difference between his rate, and that of the general workers, employed in 2014 ie about R15 per hour.

[29] In cross-examination, he said that there had been workers who had been transferred from other branches because of things like retrenchment. He agreed that it would not be fair if a person who was transferred to a branch, had his salary reduced. He had assisted new employees as they came in. He was not aware of why there was such a big difference between his rate and the rate of the ex-TES employees. He did not think it was fair.

[30] The applicants’ representative then indicated that he had been intending to call a further witness being an operator, from among the group of operators whose details appear on “A14”. It was common cause that one of them, T Funeka, was employed in 1997 and earned R41,16 per hour and that the balance of 37 operators were ex-TES employees who were employed between 2014 and 2017 and all earned R27,83 per hour. The respondent’s representative said that the same submissions as he had made and the same evidence that had been led in the case of the prior witnesses, would apply to this differential, being some R14 per hour. In the circumstances, Mr Mkhwanazi indicated that he would not call the witness but would deal with the matter in closing argument.

[31] The respondent then opened its case and called Ms E Pieterse, the baking manager with 27 years service. The mother company is Premier and there are bakeries under that, such as BB and Blue Ribbon, all over the country. BB Bakeries was established in 1852.

[32] She said that applicants’ witness Ngidi was a loader and not a general worker. The position of a loader is not the same as a general worker. Loaders work in dispatch. Bakery and general workers work in the physical part of the factory where the bread production takes place. The loaders work once the product has been manufactured and is ready to dispatch. They do not have different skills to general workers.

[33] The 2014 employees came to be employed by the respondent as a result of insourcing of TES employees. This did not only affect BB but also Durban Bakery. With regard to the longer serving employees, some of them came from other branches such as Newcastle. If there were vacancies available, staff from other branches could apply or they could have come as a result of retrenchments if other branches closed down. Mobeni closed down and staff were also retrenched from Durban Bakery. In the past, staff have accepted positions at lower grades as a result of retrenchments.

[34] In the period since 1991, there were no trade unions until about 2010, and these were FAWU and AMITU. Wage increases were done on an individual merit basis, and some employees received 3%, whereas others would get more or less. If an employee came across from Mobeni as a result of a retrenchment, the respondent did not reduce their salaries. The respondent did not retrench the long service employees because that would have been unfair, because the LIFO principle would be applied.

[35] The first group ie the 15 long serving employees attained their higher salaries as a result of their long service and other reasons such as merit increases, as they had been employed from as long ago as 1991.

[36] The issue of grading of employees on the basis of length of service came up during wage negotiations and it was discussed but no resolution was reached.

[37] She referred to the EEA Code of Good Practice, at “A96”, paragraph 7.3.1. This refers to an employee’s seniority or length of service, and provides that it is not unfair to differentiate on this basis. She did not regard this as an arbitrary ground.

[38] She said that there was no difference between the post-2014 group ie they all earned R23,59, because since 2014 wage negotiations had been done in consultation with the union and there had been agreements that increases would be affected across the board. Job grading had been discussed in wage negotiations but no finality has been reached on this issue. The general worker relievers were paid at a slightly higher rate because of the nature of their jobs.

[39] She did not feel that the differentiation between the first 15 and the second group was discriminatory, and this had been agreed with the union. The only way to deal with the matter going forward would be to retrench the higher paid employees, but this was not considered. The company could not afford to bring the lower paid group i.e. those earning R23,59 per hour up to the rate of the higher paid employees. This would have a knock on effect right through the Premier Group, and would not be restricted to general and bakery workers.

[40] In cross-examination she said that she did not deal with grading issues. In comparing a dispatch loader and a general worker, she said that a loader loaded finished product, whereas the general worker worked with the actual manufacture of the product, as did a bakery worker.

[41] If a staff member was going to face retrenchment in Durban he could be transferred to Pinetown and would be transferred at his same rate. This could cause rate differentials in Pinetown.

[42] She agreed that the issue in dispute at this hearing had been on the agenda at wage negotiations and it had been agreed that the matter would not be dealt with as part of the negotiations, but would be referred to the CCMA. It had been said by the respondent at the negotiations that general workers’ rates would be adjusted over 5 years, to begin to close the gap between them and longer serving, higher earning group and that was the reason why that group received a double-digit increase in 2016 ie 18%.

[43] With reference to “A13”, she was referred to the differences between the wage rates in the first group ie the higher earning 15 employees. She said that she could not give a clear answer as to why there were those sorts of discrepancies. She could only say that long service, seniority and merit increases were the reasons for the differentiations. They received their increases without the involvement of trade unions and she believed that people received merit increases. She agreed that there were service differences of 13 years between Nkosi at No. 2 and Nzama and Shezi at Nos. 14 and 15, but they earned the same rate ie R39,43. She did not know why these differences existed.

[44] Similarly, she was referred to the differentials between people in the second group ie ex-TES employees. There were service differentials of four years, but they earned the same rate. ie R23,59. She said that it was done because they were entitled to equal pay for equal work. She said that the 2018 employees could not be paid at a lower rate than the others.

[45] She agreed that the bakery worker, S Dlamini at No. 1 at “A13”, was paid the highest at R42,12. He was employed in 1990. She was unaware as to how he had achieved this rate over the years and she believed it was based on length of service.

[46] She said that Cele was a bakery worker and not an operator. The payslip which indicated he was an operator was a mistake.

Operators were paid at a much lower level than the first group of bakery workers.

[47] She said that the respondent recognised long service and gave awards in the form of a cash payment.

[48] The rate of R23,59 per hour worked out to R4 600 per month. ie 195 hours per month on four day, 12 hour shifts. This also applied to the bakery workers. In 2013 they earned R1 700 per month and since then attempts had been made to narrow the gap between them and the higher earning workers and give higher increases and now they were at the level of approximately R1 060 per week, or R4 600 per month.

[49] The respondent’s final witness was Kavetha Manowah. She is the regional HR manager for KZN. In 2014, when the TES workers were insourced, there was no representative union present at the Pinetown branch, but FAWU was involved. They were started at R14,36 per hour. This rate was determined by a few factors and in consultation with the union and bakery workers. This rate applied at other branches as well, and it included general workers and loaders. They had been earning less when they were with Alpha and Omega and when they came on board with the respondent they were standardised in 2014 at R14,36.

[50] The respondent relies on longer serving employees because of their experience, and used them to guide newer employees. Length of service was not an arbitrary ground. There was no malicious intent to isolate one group ie in pegging them at a lower level. If the CCMA found that the differential was discriminatory, it would have a massive financial impact on the respondent and it would lead to retrenchments. It would have a knock on effect on other bakeries and mills. They would have to re-strategise their business plans. She felt that the respondent had been fair to the employees at all levels.

[51] In cross-examination, she said that FAWU had not been recognised in 2014 and before that date. In terms of job grading, bakery and general workers and loaders, they were the lowest paid workers ie A Band in the Patterson system. Bakery workers and general workers did the same job, and loaders did different jobs.

[52] She agreed that the 2016 wage agreement signed with AMITU said that general workers would receive 18% increases.

[53] Following the closure of the evidentiary phase of the arbitration, the representatives agreed that they would submit written closing arguments to the CCMA by 30 August 2018.

Analysis of evidence

[54] The applicants in this matter have referred a dispute in terms of section 6(4) of the Employment Equity Act, (equal pay for work of equal value). It is alleged that the respondent has discriminated against various members in various categories of work on an arbitrary basis, in regard to payment for work performed.

[55] Before I deal with the merits of the applicants’ case, it is appropriate to set out the law relating to the complex issue of equal work for equal pay, and the relevant principles of fairness, rationality, discrimination and justification of differentials, which must be taken into account in a dispute of this nature.

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.

It was common cause that there were differentials in the hourly rates between various employees in the same groups and between groups, and it was the respondent’s case that such differentials were justified by (amongst other factors such as transfers and measures taken to avoid retrenchment), seniority and length of service. Accordingly it is relevant to look at Schedule 7 of the Employment Equity Act which deals with factors that justifies differentiation in terms and conditions of employment. Clause 7 provides that if employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or all of the following grounds – the individual’s seniority or length of service.

[56] The difficult issue of equal pay for equal work has been dealt with on a number of occasions by the Labour Court and I will refer in this award to some of these cases, including the decision of the Court in the matter of Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and others (C687/15) [2016] ZALCCT 14; [2016] 9 BLLR 942 (LC).

At the risk of being repetitive, it is useful to set out the statutory background. Section 6(1) of the Employment Equity Act provides that “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, 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 on any other arbitrary ground.” ie the wording of the section specifically implies that it is the arbitrariness of the ground which is the key factor ie no-one may discriminate on the basis of race, gender, sex etc, or on any other arbitrary ground.

It is clear that the listed grounds (race, gender etc) are considered by the Act to be arbitrary, and therefore discriminatory. The section does not list all the possible grounds, but concludes the section by stating that any other (ie similarly) arbitrary ground is also outlawed.

The provisions of section 6(4) of the Act makes this clear.

“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.”

[57] In the circumstances, it is clear that the applicants must be able to show that the reason that they are not being paid the same rate for the same type of work, is an arbitrary ground, similar to the listed grounds, in that it is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings. (see Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489(CC).

The court in Pioneer Foods (above) pointed out that in an unfair discrimination claim where the act or omission is shown to constitute differentiation between people or categories of people, the Court embarks on a two-stage analysis, as laid down in the seminal decision of the Constitutional Court, Harksen v Lane NO referred to above:

“Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then the discrimination is automatically established. However, if it is not on a listed, or specified ground ie if it is on an arbitrary 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. If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it is found to have been on a specified ground, then unfairness will be presumed. If it is on an unspecified ie arbitrary ground, unfairness will have to be established by the complainant. The test of unfairness focuses on the impact of the discrimination on the complainant and others in his or her situation.”

[58] The Court in Pioneer Foods went on to say that “In order to prove that the conduct complained of amounts to discrimination in terms of section 11(2)(b), the complainant must identify the listed or unlisted arbitrary ground of discrimination relied upon; establish that that ground is an “other arbitrary ground, and prove that that ground is the reason for the disparate treatment complained of.

As this Court observed in Ntai and others v SA Breweries Ltd (2001) 22 ILJ 214 (LC):

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

[59] In Louw v Golden Arrow Bus Services (Pty) Ltd the Labour Court held:

“Discrimination on a particular ground means that the ground is the reason for disparate treatment complained of.”

[60] In the matter of Ntai / SA Breweries Ltd (above), the Court said that:

“It is only when such differentiation is based on or linked to an unacceptable ground that it becomes discrimination within its pejorative meaning.”

[61] The facts in the Pioneer Foods case were rather similar to the facts in this dispute ie the applicants in the Pioneer Food case were former TES employees, who were employed later than the existing permanent employees and were paid at a rate of 20% less than the older serving employees. The Court (in Pioneer Foods) said as follows:

“It therefore emerges that the Commissioner’s approach rests on nothing more than a finding that it amounts to unfair discrimination for the appellant to pay a newly appointed employee previously employed by a labour broker at a rate lower than the rate paid to existing long-service employees, no matter how short the period of previous employment with the labour broker. That cannot be correct. Nothing in the EEA precludes an employer from adopting and applying a rule in terms of which newly appointed employees start at a rate lower than existing long-serving employees. This applies whether or not the newly appointed employee had previous substantial experience, whether with the employer concerned or some other employer. It also applies whether or not the employee had, in the past, rendered services to the employer concerned via a labour broker”.

[62] The Judge (in Pioneer Foods) goes on to say that:

“Differential treatment is ubiquitous in modern life and in the workplace. The EEA does not regulate such differential treatment at all unless and until it is established that it is both ‘not rational’ and constitutes ‘discrimination’. (To constitute ‘discrimination’ the differentiation must take place on a listed ground or on any ‘other arbitrary ground’, as contemplated to in section 6(1).) The following seminal passage from the Constitutional Court’s judgment in Prinsloo v Van der Linde and another 1997 (6) BCLR 759 (CC) is directly applicable, . . .

‘If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by resorting to section 33, or else constituted discrimination which had to be shown not to be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct… The courts would be compelled to review the reasonableness or the fairness of every classification of rights, duties, privileges, immunities, benefits or disadvantages flowing from any law. Accordingly, it is necessary to identify the criteria that separate legitimate differentiation from differentiation that has crossed the border of constitutional impermissibility and is unequal or discriminatory ‘in the constitutional sense’.”

The Court (Pioneer Foods) noted that:

“The Constitutional Court accepted that it is impossible to regulate a modern country without differentiation and without classifications which treat people differently and which impact on people differently. The Court described the common differentiation to which it was referring as ‘mere differentiation’ (as distinct from ‘discrimination’) and held that in regard to mere differentiation the constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental purpose . . .”

[63] Finally, the Court pointed out that differentiation in respect of terms and conditions of employment on the basis of length of service is a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common. The Court noted that this view is shared by our lawmakers in that there are three statutory prescripts which indicate length of service as a legitimate differentiating factor

• ie 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”,
• section 198D(2)(a) of the LRA, which includes “length of service” as a “justifiable reason” for differential treatment and
• clause 7.3.1 of the Code of Good Practice on Equal Pay / Remuneration for Work of Equal Value.

[64] The applicants in the current dispute referred primarily to three separate groups of employees and I shall refer to these as Group A, Group B and Group C.

• Group A is a group of some 15 employees (bakery workers) employed between 1990 and 2004, who earn between R42,12 per hour, and R39,42 per hour.
• Group B comprises a group of 16 employees (general workers) employed between 2014 and 2018, who earn R23,59 per hour.
• Group C is a group of 27 employees (operators) employed between 2014 and 2017, with the exception of one employed in 1997. Those employed between 2014 and 2017 all earn R27,83 per hour and one of them employed in 1997, earns R41,16 per hour.

[65] Reference was also made to a loader, driver/sales employees and a single general reliever. I shall deal very briefly with these last mentioned three first. In regard to the loader, no comparator was provided, and the witness (Ngidi) conceded that his payslip designated him as a loader. He simply stated that he believed that he should be classified as a general worker. The evidence of the respondent to the effect that there were no loaders working alongside the general workers in the production zone was not successfully challenged. The respondent’s witnesses testified that he was a loader and worked outside of production in dispatch.

Accordingly, I cannot take any account of his evidence. With regard to the single position of general reliever, again no comparator was provided by the applicants. He earned R39,46 per hour and had 10 years more service than the general workers. The respondent’s evidence was that he had a different skill set to general and bakery workers, and that he had 10 years longer service than the other general workers. In the circumstances and in the absence of anyone else to compare him with, I cannot deal with his situation. With regard to the driver/sales employees, it was agreed during the course of the arbitration that because the applicants did not have any detailed information or wage slips available for either of these two groups, I indicated that they would have to form the basis of a separate dispute.

[66] The only groups I can therefore deal with are therefore Groups A, B and C, which I have summarised in paragraph 64 above.

[67] Within Group A itself, there are some minor differentials, the biggest being R2,69 per hour, ie between the highest paid bakery worker at R42,12, and the lowest paid in that group, at R39,43. It was not explained on what factors those various differentials are based. For example, V Nkosi was employed in 1991 and earns R39,43, which is less than the rate of J Shozi (R39,49) who was employed 13 years later, in 2004. The respondent’s evidence and argument explained these differentials on various factors, such as length of service, seniority, and other factors such as staff being transferred from one branch to another, and steps taken to avoid retrenchment. However the witnesses Pieterse and Manowah were unable to provide a precise explanation in each case, save to state that these were as a result of long standing historical factors going back over the last 27 years. They disputed emphatically that there was discrimination on any listed or arbitrary ground.

[68] Group B comprises the ex-TES employees who were employed in 2014 ie between 10 and 27 years later than the employees in Group A.

Group C is a group of 27 employees (operators) employed between 2014 and 2017, with the exception of one employed in 1997 ie 20 years earlier. He earns more than his colleagues.

[69] I do not intend to burden this award with a more detailed analysis of my reasoning for not upholding the applicants’ claim in this referral.

It is starkly obvious that the reasons for the differentiation in all three groups, are seniority of the employees, length of service of the employees and specifically in relation to Group A, the other factors which have been referred to above, also played a part (ie transfers, merit increases and retrenchments).

The applicants have failed to identify any ground on which they rely, and have merely stated that differences in rates exist, which was common cause from the outset. The applicants have not been able to prove that the various differentiations are arbitrary or manifest “naked preferences” that serve no legitimate purpose, to use the words of the Constitutional Court in the Prinsloo matter (above).

[70] Finally, the comments by the Judge President of the Labour Court in the matter of NUMSA and others v Gabriel (Pty) Ltd (2002) 23 ILJ 2088 (LC), are also relevant here:

“Where the differential treatment is not based on a listed ground, it is not sufficient to merely allege that the employment policy or practice in question is arbitrary. The complainant must allege and prove that the policy and practice is based on an analogous ground to the listed ground. What is therefore required, is that a complainant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds, namely, that it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparable manner. It is clear from the above . . . that the applicants have not ascribed the differential treatment in question, to any ground analogous to the listed grounds in s 6(1) of the EEA. The applicants have failed to allege that the reason for the differentiation is some characteristic that impacts upon their human dignity. The applicants have, accordingly, failed to make the minimum sufficient allegations to sustain a claim of unfair discrimination, or direct unfair discrimination, within the meaning of s 6(1) of the EEA”.

[71] I can understand that some of the applicants in Group A are unhappy because they earn the same as employees with shorter service, and I can understand why the general workers in Group B are dissatisfied because they earn significantly less than their colleagues in Group A. However, these are legitimate matters of mutual interest. I note that the trade union has acted in a responsible manner in this matter in that it raised these issues at wage negotiations, and then took them off the table in order to challenge the differential rates in the CCMA. Now that they have not achieved success here, they are within their rights to take this matter back to the wage negotiating table, and to work towards ironing out the anomalies in Group A, and moving towards narrowing the gap in Groups B and C. I also note that the respondent has acted responsibly in that it has recognised the difficulties caused by the large differentiations based on historical factors, and it has awarded the ex TES employees much larger increases recently, than it awarded to the long serving employees, in an attempt to narrow that gap.

[72] It is to be hoped that this rational interaction between the parties can continue, going forward, until these outstanding issues are satisfactorily resolved.

[73] In conclusion, I find that the differentiations complained of are not irrational, are not based on any arbitrary unlisted grounds and are not unfair. There is no evidence that the respondent discriminated against the applicant within the meaning of section 6 and section 11 of the Employment Equity Act.

Award

There is no evidence that the respondent discriminated against the applicants and their dispute is dismissed.