The individual applicants refused to be tested, believing them to be an inaccurate measure of performance and proficiency. It was decided that testing and assessing employees before promotion was a legitimate practice based on the inherent requirements of the job. In other words the ‘differentiation’ was not arbitrary nor unreasonable and measured ‘outputs’ and value. SARS had not discriminated against any of the employees. So in reality the issue of ‘fair discrimination’ did not arise. The trade union claimed that its members had an ‘equal pay dispute’ with their employer, SARS, and relied on s6(4) of the Employment Equity Act (EEA). The issue did not concern any disproportionate pay levels.
Nehawu obo members v SA Revenue Service [2015] 9 BALR 966 (CCMA) per R Byrne, Commissioner.
SARS has Call or Contact Centres (Centres) where ‘agents’ assist taxpayers with queries and information. SARS has a ‘Capability Framework’ with defined occupational levels and tests. The writing of tests to measure competence and promotion is based on annual assessments and those tests. At the Centres there are only two occupational levels with intermediate job grades: 3B, 4A entry, 4A mid, 4B entry and 4B mid. Nehawu insisted that the work performed at level 3B was the same, or of equal worth, to 4A entry entitling all those employees to be paid the same wage.
SARS argued that the entry level at the Centres is Level 3B where no prior experience or qualification is required. After completing a training course on Income Tax employees deal with calls from the public for at least one year. Employees who pass an exam with a mark of at least 60%, and depending on annual assessments, are promoted to 4A entry. SARS deems them to be proficient in one aspect of taxation and from then on they learn additional aspects of tax such as VAT, PAYE or Customs and Excise. After learning a second aspect of tax they may be tested and if they pass, they are promoted to 4A mid. Proficiency in a further aspect of tax results in promotion to 4B entry, etc.
Nehawu did not rely on any ‘listed ground’ in terms of s6 of the EEA but alleged that the ‘Capability Framework’ was not a true measure of performance and/or value. In other words there are employees on 3B who do the same work as employees on 4A. It was also alleged that the 3B and 4A employees are on the same telephone queuing system and handle the same calls, as the queuing system does not differentiate between the complexities of incoming calls.