Unequal pay determined: Arbitrary grounds

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

Award

Details of hearing and representation

[1] The applicant is MH.

[2] The respondent is the Department of Education: Eastern Cape.

[3] The arbitration was last heard on 30 March 2023.

[4] The parties agreed to file written submissions by no later than 6 April 2023. Both parties had complied with the time frame.

Issue to be decided

[5] I am required to determine:

5.1 The duties of the applicant;
5.2 Whether there is a comparator;
5.3 The duties of the comparator;
5.4 Whether those duties are the same or substantially the same or amount to work of equal value;
5.5 Whether there is a differentiation in the manner in which the applicant is treated as compared to the comparators;
5.6 If so, whether conduct complained of is irrational;
5.7 If so, whether it amounts to discrimination and whether the discrimination is on account of the applicant’s background and education and whether those grounds constitute an arbitrary ground;
5.8 If so, whether the discrimination is unfair; and
5.9 If so, the appropriate relief.

Evidence

[6] Both parties had agreed that the surrounding facts are common cause and/or not disputed.

[7] The parties agreed to a written “Stated Case” wherein all the facts and submissions of the respective parties are to be found.

[8] The facts and submissions raised in the “Stated Case” are restated, in full, hereunder:

8.1 The applicant was employed by the respondent from 4 June 1990 as a Temporary General Assistant at the Regional Office on a salary scale of R5 016 – R6 213 per month.
8.2 Due to a shortage of personnel in 1992, the applicant was placed, trained and utilised to perform the duties of an Administration Clerk at the Examination and Curriculum Section of the Port Elizabeth District office.
8.3 From 1992 the applicant’s Performance Management System Assessments (“PMDS assessments”) were based on the job which he performed, that of an Administration Clerk and subsequently the job which he currently performs, that of a Senior Administration Clerk.
8.4 On 28 October 1993 the applicant’s permanent appointment was approved, effective 1 July 1993, in terms of section 7(1)(c)(i) of the Public Service Act 111 of 1984. The letter confirming the applicant’s permanent employment was addressed to him at the “Examination Section, Ellerines Building”. The letter went on to confirm that the applicant would retain his “present rank, and salary particulars and service conditions”.
8.5 In 1998 the applicant obtained his Standard 10 (matric) Senior Certificate. A matric certificate was not an inherent requirement for the job of Administration Clerk or Senior Administration Clerk up and until 30 June 1999.
8.6 Following a Rationalisation and Restructuring Process (Migration Plan) by the Department during 2002, the applicant was retained in the Port Elizabeth District Office, Examinations and Assessments.
8.7 During the implementation of the Migration Plan several senior examination officials were transferred to various divisions with the result that the applicant had to take over the administrative functions which were performed by the said officials. In particular, Mr M, Senior Administration Officer, was transferred to HR and the applicant took over the duties of Mr M.
8.7 A memorandum was issued on 14 April 2009 declaring a moratorium on the advertisement and filling of all office-based education, office-based public service staff and school support staff posts. The moratorium is still in effect – see copy attached.
[Numbering as per Award – Ed.]
8.8 Prior to the moratorium and up until 30 June 1999 when the CORE System came into operation there was an opportunity for the applicant to be rank translated through the Personnel Administration System (“PAS”). The applicant’s supervisor, Mr G motivated for the rank translation of the applicant on 9 July 1997 (Bundle: pages 7–24) on account of, inter alia, the applicant having performed the tasks, being trained and there being 2 vacant posts. Notwithstanding the applicant was not rank translated.
8.9 On 13 April 2010, the then Acting Superintendent General, Prof RHN, issued a memorandum with an instruction that interns, inter alia, be absorbed into their then current positions if there were vacant posts, which instruction was issued during the period of the moratorium [sic].
8.10 The interns, who were all tertiary education graduates or had a grade 12 matric certificate were employed on a work experience basis. The interns performed administrative duties, much the same as the applicant, but reported to the applicant.
8.11 On 19 March 2014 the applicant referred an unfair labour practice dispute relating to promotion to the General Public Service Sectoral Bargaining Council (“the GPSSBC”) which dispute was allocated case number GPBC693/2014.
The dispute culminated in an award, dated 8 September 2014, which held that the applicant’s claim was one of promotion and that in light of the moratorium placed on recruitment, the applicant could not claim an unfair labour practice in relation to promotion, on the premise that he had been acting in a position.
8.12 Effective 1 April 2015, 8 Temporary Examination Assistants (the “interns”) who were employed in 2009 and who had been discharging duties under the supervision and control of the applicant were absorbed by the Department as permanent employees at salary level 5 (Bundle: page 62). These Temporary Examination Assistants were all employed directly into the post of Temporary Examination Assistant and all had a Grade 12 (Matric) Senior Certificate at the time of their employment.
8.13 On several occasions the applicant was appointed by the Provincial Examination Office in the National Senior Certificates Examinations as a Script Control Officer (formerly known as a Deputy Centre Manager) and further tasked to deliver external examination question papers for Grade 12 to various Port Elizabeth exam centres and to deliver marked scripts to the King Williams Town office.
8.14 The applicant has discharged his duties as an Administration Clerk and Senior Administration Clerk satisfactorily and has in fact received praise for his performance on a number of occasions.
8.15 There have been a number of attempts by the relevant Section Heads, Examinations in the Port Elizabeth District Office and the applicant himself to have his rank translated to no avail.
8.16 The applicant is currently appointed as a Cleaner/General Assistant Grade II, salary level 3, Notch 5 of R150 975 per annum and based at the Port Elizabeth District Office Examination Section.
8.17 The applicant’s duties were those of an Administration Clerk, which included those set out in his PMDS Assessment (Bundle: pages 14–24). Those duties were the same as other Administration Clerks.
8.18 The applicant’s duties were subsequently those of a Senior Administration Clerk as from 2003 (Bundle: pages 25–43), which duties were the same as Mr M, Senior Administration Clerk, Level 6, his comparator at the time.
8.19 The applicant has furthered himself and has taken over some of the duties of the Section Head, including dealing with all queries regarding examinations (Bundle: pages 45–47).
8.20 The applicant performed the same or substantially the same or work of equal value to other Administration Clerks (“comparators”) but was not paid the same as those comparators.
8.21 The applicant, as from 2003, performed the same or substantially the same or work of equal value to other Senior Administration Clerks (“comparators”), but was not paid the same as those comparators and was in fact paid less than the Administration Clerks reporting to him.
8.22 The applicant is paid at a Grade II, salary level 3, as set out above whereas the comparators are paid at salary level 5, R181 599 (min) and salary level 6, R218 064 (min).
8.23 The applicant alleges that the differentiation, which is apparent from the stated facts amounts to unfair discrimination on an arbitrary ground, namely his background, of initially being employed in the relatively humble position of a General Assistant/Cleaner and his education, which did not include a senior certificate, until 1998. The applicant alleges, but for the unfair discrimination against him on those arbitrary grounds the applicant would have been translated to the correct rank and paid the salary he ought to be paid for the job he is performing, that of his comparators.
8.24 The applicant alleges that the conduct complained of is not rational, amounts to discrimination in that it had the effect of impairing his human dignity; and the discrimination is unfair.
8.25 The applicant alleges that the “differentiation” amounted to unfair discrimination on arbitrary grounds namely his background. Further to that the applicant links this background as the arbitrary ground that caused him not to receive the same remuneration (equal work equal pay) as his comparators. At the time he was appointed as a General Assistant/Cleaner the applicant was in possession of a Junior Certificate, and he received the remuneration in line with his occupational class.
8.26 The applicant was appointed in a permanent position on 1 September 1994 as a General Assistant/Cleaner. Before that he was in a temporary General Assistant/Cleaner post. According to the respondent’s HR Section, matric was not an inherent requirement to be appointed as an Administration Clerk whilst the Personnel Administration Standard (PAS) system was still effective. However, you had to comply with the conditions of appointment vs conditions of promotion. The PAS System was replaced by the CORE (CODES OF REMUNERATION) on 1 July 1999. As from the date that CORE came into effect matric became an inherent requirement to be appointed as an Administration Clerk.
8.27 Since CORE came into effect, you cannot be rank translated from one occupational class to that of the next occupational class.
8.27 In terms of the Public Servants Regulations as contained in the Public Servants Act (Act 103 of 1994 as amended) Chapter 1 Section F.1 An executing authority may promote an employee to a vacant post on the approved establishment of the department if:

(a) sufficiently budgeted funds, including funds for the rT-remaining [sic] period of the relevant medium-term expenditure framework are available for filling the vacancy;
(b) the vacancy has been advertised and the candidate selected in accordance with regulations VII C and D (Recruitment & Selection) F.3 [sic] No employee has any right to promotion to a vacant post until the promotion has been approved in writing by the executing authority.
[Numbering as per Award – Ed.]

8.28 The last time any Public Servant/Administrative post was advertised was during 2009. On 14 April 2009 a memorandum was issued declaring a moratorium on the advertisement and filling of all office-based educators, office-based public service act staff and school support staff posts. This has not changed to date.
8.29 The applicant seeks to be rank translated to the next occupational class, that of Senior Administrative Clerk salary level 6.
8.30 During the time from 1994 to 14 April 2009, when the moratorium was placed on the advertisement and filling of public servant staff posts, the applicant could apply for any administrative post he qualified for.
8.31 The argument that the applicant must be promoted from February 1999 should be disregarded as he had a fair opportunity to apply for any post he qualified for prior to 14 April 2009.
8.32 In terms of the PAS (Personnel Administration Standard) one must have regard to the occupational class the applicant wants to translate to. The applicant is currently a Cleaner/General Assistant Grade II which is in line with the occupational class. The applicant now seeks translation to another occupational class, that of an Administration Clerk and the requirements are that there must be a vacancy that is in existence or a post must be created which involves financial implications.
8.33 An employee employed in terms of the Public Servants Act 103 of 1994 (as amended) cannot simply be promoted to the next occupational class. The vacancy must be advertised and the candidate must be selected in accordance with regulations regarding the recruitment and selection processes.
8.34 The applicant seeks promotion in terms of an “application for vacancies system.” which means that there must be a vacancy, it must be advertised and both current employees as well as external applicants are invited to apply for these posts. This in fact means that the applicant is nothing other than a job applicant.
8.35 Only on 3 June 2013 a post became vacant in the Department for an Administrative Clerk post, but as a result of the moratorium that is still in place the post to date has not yet been advertised.
8.36 The last time any Public Servant/Administrative post was advertised was during 2009. On 14 April 2009 a memorandum was issued declaring a moratorium on the advertisement and filling of all office-based educators, office-based public service act staff and school support staff posts. This has not changed to date.

Analysis of evidence and argument

[9] No person may unfairly discriminate against another either on a listed ground or arbitrary ground in terms of section 6 of the Employment Equity Act 55 of 1998.

[10] Section 6(4) of the EEA reads:

“A difference in terms of 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.”

[11] Section 11(c) of the EEA reads:

“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.”

[12] As previously stated, the facts surrounding the dispute are common cause.

[13] What is clear is that the applicant, whilst he was employed and classified on the respondent’s “books” as General Assistant/Cleaner, and paid accordingly, he was not performing these tasks. He is performing the functions of an administrative clerk and senior administrative clerk for the last 30 years, and yet, is not remunerated according to the respective remuneration grade level.

[14] What is clear is that administrative clerks that were employed after the applicant, and reporting to him, are placed on a salary grade level, which is higher than his current grading level.

[15] What is also clear is that the applicant, who has been discharging Senior Administrative Clerk duties, was not placed on such relevant grading level 6, compared to Mr M and the specific remuneration organogram structure of the respondent.

[16] What is further clear, and not disputed, is that the applicant’s manager had applied for rank translation for the applicant. This was not granted to the applicant. This was before the moratorium was in place.

[17] What we gather from the above, is that there is differentiation in terms of remuneration grade levels between the applicant and the other two comparators.

[18] The applicant’s comparators were doing the same job as that of the applicant.

[19] The differentiation between the applicant and the comparators is not rational. A person is being remunerated, graded as a cleaner and general assistant, whereas his job function for the last 30 years is the same as that of his comparators, who are on a higher ground: this is not rational.

[20] The next question is whether such differentiation amounts to discrimination.

[21] The applicant has submitted that the respondent has discriminated against him because of his background and education.

[22] The respondent has not contested this submission from the applicant. From the uncontested submissions before me, it can be reasonably inferred that the applicant was not rank translated because of his background and his education at the time the respondent referred the rank translate at the request of Mr G.

[23] This ground constitutes, in my view, an arbitrary ground as the differentiation was based on the attributes and characteristics that have the potential to impair the fundamental dignity of the applicant as a human being or to affect him in a comparably serious manner.

See the test for discrimination in Harksen & Lane NO and others 1998 (1) SA 300 (CC) at paragraphs 48 and 49.

[24] See also Naidoo v Parliament of Republic of SA (2020) 41 ILJ 1931 (LAC) and also the article by Prof. Darcy du Toit: Discrimination on an “Arbitrary Ground” and the Right of Access to Justice (2021) 42 ILJ 1 at page 8 where the following is said regarding arbitrary:

“Its ordinary meaning of ‘irrational’ or ‘capricious’ is fundamentally qualified if not replaced by the connotation of ‘impairing human dignity’”. (Referring to the Naidoo case supra).

[25] I was referred to the moratorium placed on promotions in the public sector as a defence in not placing the applicant in the correct remuneration grade level. This moratorium was, if I understood it correctly, promotion for vacant positions. In this case, the applicant has been working for 30 years in the said positions – he was trained for the positions and performance evaluated on the current tasks he has been doing.

In my view, in the applicant’s case, there is no vacant position for his job, as he is currently discharging the duties therein. The respondent’s defence is no defence in this case.

[26] The respondent was under the inherent duty to correct this anomaly with the applicant and had perpetuated the discriminatory conduct against him.

[27] The discriminatory conduct, given the surrounding facts, is grossly unfair. How do you keep an employee on the cleaner/general assistant grade level, when he is discharging duties of a senior administrative assistant for decades? Everybody who is of relevance knows about the applicant’s case. How does an employer justify discriminatory conduct by placing the applicant’s subordinates above him in the grading system and for them to be remunerated at a higher level? Their defence on the moratorium is not a defence and should not be a defence in this case.

[28] The respondent’s conduct towards the applicant is “capricious”, baseless, unfair, unreasonable and unjustifiable, which has impaired the applicant’s fundamental dignity as a human being.

[29] I now turn to the relief sought.

[30] The applicant has sought the following as relief:

30.1 Damages limited to 6 months remuneration;
30.2 Compensation for 12 months remuneration;
30.3 That the applicant be placed on the respondent Persal System effective from 17 October 2022, being placed on a Salary Level 6 (R218 064 per annum).

[31] The applicant submitted that it would not be controversial to place him on the salary level 6, which is the entry level for Senior Administrative Assistant. If the applicant is not placed accordingly, then the applicant will remain discriminated against.

[32] Section 50(2)(c) of the EEA reads:

“. . . the Court may make any appropriate order that is just and equitable in the circumstances, including an order directing the employer to take steps to prevent the same unfair discrimination . . .”

The CCMA has the same powers.

[33] By ordering that the respondent place the applicant on the entry Level 6 Senior Administrative Assistant, would, in my view, prevent the same unfair discrimination continuing to happen against the applicant.

[34] Considering the facts surrounding this matter, it is my view that it would be just and equitable to grant the applicant 12 months compensation.

[35] Furthermore, I can find no reason not to grant the damages as sought by the applicant. It is unfortunate that the damages sought may only be limited to 6 months.

[36] Given the above, the following award is rendered. This is the least that can be done for the applicant, given the deplorable behaviour from the respondent to have unfairly discriminated against him for so many years.

Award

[37] The respondent, Department of Education: Eastern Cape, has unfairly discriminated against the applicant, MH.

[38] The respondent, Department of Education: Eastern Cape, is ordered to place the applicant, MH, on its Persal System as a Senior Administrative Clerk as from 17 October 2022.

[39] The respondent, Department of Education: Eastern Cape, is ordered to place the applicant, MH, on salary level 6, R218 064 per annum, retrospectively to 17 October 2022.

[40] The respondent, Department of Education: Eastern Cape, must pay the applicant, MH, R109 032, as damages, by no later than 30 May 2023.

[41] The respondent, Department of Education: Eastern Cape, must pay the applicant, MH, R218 064, as compensation, by no later than 30 May 2023.

 

Flynote:

“Grievance/(Residual) Unfair labour practices – Discrimination – Equal pay for equal work – Employee paid at level of cleaner/general assistant while performing work of senior administrative clerk on basis that he lacked educational qualification – Discrimination irrational and unfair.”

Summary: