Samwu v Nelson Mandela Bay Municipality [2016] 2 BLLR 202 ; (2016) ILJ 1203 (LC) per Phatshoane AJ.

Instead of refusing the application altogether the Labour Court ‘absolved the employer from the instance’.  This meant that although the employee failed to substantiate the claim of wage discrimination the case could be brought again.  The claim was brought in terms of the Employment Equity Act (EEA).  But the employee had to show that the pay difference was linked to a prohibited ground.

It is strange that despite the EEA requirement of 7 occupational levels (see EEA9) the judgment only refers to grades.  Strictly speaking with 7 occupational levels the enterprise only needs 21 grades (3 per level). But there is no indication in the judgment of how many grades existed.  Levels are very important because it is possible for employers to justify differentials within a level of up to 100%.  This can be done on the basis of rational ‘outputs’ or the creation of extra value within that level.

At para 35 the Labour Court referred to the following remarks of Nugent JA in the SCA judgment in Raol Investments (Pty) Ltd t/a Thekwini Toyota v Madala:

“Whether an employer has discriminated against an employee on the grounds of race (or on any other arbitrary ground) is a question of fact (whether the discrimination was unfair is a separate question).  Where the evidence establishes, as it does in this case, that the employer treated employees differently on grounds other than race, there is simply no scope to infer that the employee was discriminated against on the grounds of race, because the reason for the disparate treatment has been established to be something else.

That the differential treatment was not justified is immaterial to the factual enquiry as to the reason that it occurred.  In this case the company said that its disparate treatment of the two employees (Ferreira was white and the respondent is black) was because a formal complaint was lodged by the victim of the assault in one case but not in the other.  Unless that explanation is rejected as no more than a smokescreen to conceal a more sinister motive (and in my view there are no proper grounds for doing so) there is simply no scope for an inference to be drawn that conflicts with that explanation.” [Emphasis added]