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[2021] ZALAC 25
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Tshwane University of Technology v Maraba and Others (JA110/2019) [2021] ZALAC 25; (2021) 42 ILJ 1707 (LAC) (17 May 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA110/2019
Not
Reportable
In
the matter between:
TSHWANE
UNIVERSITY OF
TECHNOLOGY
Appellant
and
PAUL
MARABA First
Respondent
LYDIA
KHWINANA Second
Respondent
MATHILDA
LEGWALE
Third
Respondent
Heard:
6
May
2021
Delivered: 17
May 2021
Coram: Coppin
JA, Savage and Molefe AJJA
JUDGMENT
SAVAGE
AJA
[1] This
appeal, with the leave of the Court
a
quo
, is
against the judgment and orders of the Labour Court (Mabaso AJ)
delivered on 23 August 2019 in terms of which the appellant,
the
Tshwane University of Technology, was found from 1 April 2011 to have
unfairly discriminated against the respondents, Mr Paul
Maraba, Ms
Lydia Khwinana and Ms Matilda Legwale, on the basis of their social
origin. The appellant was ordered retrospectively
to increase the
salaries of the respondents to the same as that earned by Ms S
Kloppers from 1 April 2011 to date of judgment or
until the date of
termination of their employment with the appellant. No order of costs
was made.
[2] At
the outset of the hearing, the appellant’s application to have
the appeal reinstated was granted.
T
his
followed the appeal having been deemed to have been withdrawn in that
the record was not filed within the 60-day period provided
in Rule
5(8) of the Rules of this Court, with no extension having been
granted in terms of Rule 5(17).
[1]
The
first respondent, who represented himself in the appeal, did not
oppose this application; nor did the second and third respondents,
for whom there was no appearance at the hearing of the appeal.
The
appellant’s attorney explained the
delay
of 122 days as having been the result of various difficulties
encountered during the Covid-19 pandemic, including in obtaining
documents and the correct version of the audio record of proceedings
before the Labour Court. The appellant’s further application
to
have the late filing of the heads of argument condoned was also not
opposed and the application for condonation in this regard
was
similarly granted.
Background
[3] The
appellant was established following the merger of the former Pretoria
Technikon, the Technikon Northern
Gauteng based in Soshanguve and the
Technikon North-West based in Ga-Rankuwa. During the merger process,
all positions across the
three institutions were evaluated and graded
by an external consulting firm. By agreement with organised labour,
employees whose
positions were downgraded to a lower grade as a
result of the merger had their salaries capped. The merger came into
effect on
19 November 2008 at which point the salaries of 253
employees employed in different job functions across each of the
three institutions
were capped. The salary cap was to remain in the
system until salary disparities were worked out of the system.
However, following
the merger, a wage dispute led to an advisory
award being obtained as a consequence of which it was agreed between
the appellant
and organised labour that from 1 April 2011 the cap
placed on salaries following the merger would be removed.
[4] All
three respondents were employed as professional nurses, a job
category which from the date of the merger
was graded at level 9. The
first respondent, Mr Paul Maraba, was employed after the merger at
the appellant’s Ga-Rankuwa
campus on a grade 9 level. The
second respondent, Ms Lydia Khwinana, was employed prior to the
merger at Technikon Northern Gauteng
on a grade 9 level and remained
on the same level after the merger based at the appellant’s
Shoshanguve campus. The third
respondent, Ms Matilda Legwale, was
employed after the merger at the appellant’s Ga-Rankuwa campus
on a grade 9 level.
[5]
In
2012, the respondents instituted a claim in terms of section 10 of
the Employment Equity Act 55 of 1998 (‘the EEA’)
against
the appellant. Following the unsuccessful conciliation of the
dispute, the matter was referred to the Labour Court.
In their
amended statement of claim, the respondents’ pleaded case was
that
nursing
staff from ‘
the
previously well-resourced and advantaged Pretoria Technikon remained
higher on salaries scale and benefits than the nurses from
historically disadvantaged institutions thereby perpetuating
historical and apartheid divide
’
;
and that, although the appellant promised to resolve salary
differentials, this did not occur in ‘
utter
disregard for the laws of this country inclusive of the respondent on
policy guidelines on employment equity and anti-discrimination
laws
’
.
As a result, it was pleaded that ‘(t)
he
designated group
suffered
discrimination and exclusion almost uniformly by the respondent's
perpetuation of historical discrimination and disadvantage
simply due
to their social origin
’
.
[6] In
its response to the amended claim, the appellant denied any form of
discrimination against by the respondents.
Proceedings
before the Labour Court
[7]
During
the trial of the matter, t
he
appellant’s
only witness, Ms Maria Van Heerden, a director of human
resources,
testified
to a list which recorded the employees across all three institutions,
employed in different occupations and job grades,
who had had their
salaries capped on the merger coming into effect and before the cap
was lifted on 1 April 2011.
She
denied the respondents’ contention that there was evidence of
discrimination against them in the salary earned by Ms Sarina
Kloppers, a professional nurse who was employed at what was
previously the Pretoria Technikon. Before the merger, Ms Kloppers was
employed on the higher grade 8 level at a higher salary. Following
the merger, her job grade was adjusted to grade 9. While her
salary
was initially capped, this cap was lifted for all employees with
effect from 1 April 2011 following the agreement entered
into with
the unions. The result was that Ms Kloppers’ salary was, as
with other employees who had had the cap on their salaries
lifted,
increased to more than that received by the respondents although all
were employed as professional nurses on grade 9. Ms
Van
Heerden
accepted
that there was a salary differentiation between Ms Kloppers and the
respondents but denied that
this
amounted to discrimination on the grounds of social origin because Ms
Kloppers was employed at a previously white institution.
Her evidence
was that e
mployees
who benefited from the removal of the cap were based at all three of
the appellant’s campuses, including Shoshanguve
and Ga-Rankuwa.
In proof of this, Ms Van Heerden referred to the example of Mr D T
Basini from Technikon Northern Gauteng, who
was employed in a grade 6
position prior to the merger, but who after the merger was moved to
grade 9 at the Shoshanguve campus,
with his salary capped. When
salaries were uncapped in April 2011, this included that of Mr
Basini.
[8]
The
evidence of the first respondent was that only the third respondent
remained employed by the appellant. He stated that he had
resigned
from his employment with the appellant in 2017 as he could not
tolerate the continuous discrimination he faced given that
the
appellant would not rectify the salary discrimination which had
arisen. The second respondent was no longer employed by the
appellant
as she had retired.
[9] In
its judgment, the Labour Court found that the appellant –
‘
unfairly
discriminated against the [respondents] based on remuneration as a
result of their social origin because their former institutions
were
previously based in the historically disadvantaged institutions which
were under-resourced, as the [appellant] failed to present
a
justifiable ground for its conduct. The [appellant's] action amounts
to
"perpetuation
of inequality and this advantage to others on the other hand
".
However, I conclude that discrimination based on race is not founded
under the circumstances and the facts of this case.’
[10] The
Court concluded that the appellant’s conduct in paying the
respondents less remuneration than Ms
Kloppers from 1 April 2011
constituted unfair discrimination based on social origin. The
appellant was therefore ordered to increase
the salaries of the
respondents retrospectively from 1 April 2011 to the same as earned
by Ms Kloppers, with payment to those respondents
no longer employed
by the appellant to be limited to the date of the termination of
their employment with the appellant.
Submissions
on appeal
[11] Counsel
for the appellant denied that the appellant had discriminated against
the respondents on the basis
of social origin or in relation to the
campuses at which they were employed; and disputed that any
differentiation in salary between
Ms Kloppers and the respondents
amounted to discrimination. It was contended that the Labour Court
had erred in finding that discrimination
had been proved and that the
appeal should therefore be upheld, with the orders of the Labour
Court set aside and replaced with
an order dismissing the
respondents’ case.
[12] The
first respondent, who was the only respondent to file heads of
argument in opposition to this appeal,
persisted that the appellant
had discriminated against the respondents on the basis of their
social origin and that they had lacked
opportunities and prospects of
growth as a result of the appellant’s conduct. He accepted that
there were employees such
as Mr Basini who had had their salaries
capped in institutions other than the Pretoria campus and who had
benefited from the decision
to uplift the cap, but argued that it was
the effect of the decision to uncap salaries that was unfair.
Evaluation
[13] Section
6(1) of the EEA expressly p
rohibits
direct or indirect unfair discrimination against an employee
on
grounds which include social origin.
[2]
Social
origin in international human rights treaties refers to a person’s
inherited social status, descent-based discrimination
by birth and
economic and social status.
[3]
Discrimination
on this ground has been defined by the Committee of Experts of the
International Labour Organisation (‘ILO’)
to include
discrimination on the basis of class, caste or socio-occupational
category.
[4]
[14]
The
test for unfair discrimination set out in
Harksen
v Lane NO and others
[5]
applies
equally to discrimination claims in labour law.
[6]
The
first step is to establish whether the appellant’s policy or
practice differentiates between people. The second step entails
establishing whether that differentiation amounts to discrimination.
The third step involves determining whether the discrimination
is
unfair. If the discrimination is based on any of the listed
grounds in section 9 of the Constitution, it is presumed to
be
unfair.
[7]
[15]
Since
the claim of unfair discrimination had been raised by the
respondents, the burden of proof in terms of section 11 of the EEA
was placed on the appellant, as employer, to show that the
discrimination alleged did not take place or that it is justified.
This is distinguishable from
a
claim of discrimination on an arbitrary ground, in which case, in
terms of section 11(2), the burden is on the complainants to
prove
that the conduct complained of is not rational, that it amounts to
discrimination and that the discrimination is unfair.
[16] The
appellant accepted that there was differentiation in the amounts paid
to the respondents and Ms Klopper.
The evidence indicated that this
differentiation arose from the decision to uncap salaries, a decision
which was made in response
to labour demands to this effect and so as
to maintain labour peace. The unrefuted evidence before the Labour
Court was that the
decision to uncap salaries was applied across the
three institutions which had been merged into the appellant and
across different
occupational categories and grades. There was
therefore no evidence that the decision to uncap salaries was applied
only to the
previously advantaged campus of Pretoria or limited to
particular occupations or job grades.
[17]
Whether
there has been differentiation on a specified (or unspecified) ground
is a question which must be answered objectively.
The
evidence placed before the Labour Court showed that the differential
treatment that arose from the decision to uncap salaries
was not
attributable to the respondents’ social origin. As much was
evident from the fact that employees such as Mr Basini,
who although
employed at a previously disadvantaged campus, enjoyed the benefit of
a higher salary after the cap was removed from
his salary, despite
the geographical location at which he was employed.
[18] It
follows that while the decision to uncap salaries did have the effect
of
differentiating
between people employed in the same occupation and job grade, this
was not shown to have occurred on the basis of
their social origin.
Ms Klopper’s salary was uncapped in the same manner as it was
for other employees employed in different
occupational categories and
grades across all three of the appellant’s campuses. The
unrefuted evidence before the Labour
Court clearly indicated that the
differentiation which occurred as a result of the uncapping of
salaries after the merger did not
amount to unfair differentiation on
the basis of the respondents’ social origin. It follows that
the appellant proved that
there was not unfair differentiation
against the respondents and consequently that it had not
discriminated against the respondents
on this basis.
[8]
In
finding differently, the Labour Court erred.
[19] For
these reasons,
the
appeal must succeed.
There
is no reason in law or fairness why an order of costs should be made
in this matter, nor did the appellant seek such an order.
Order
[26] For
these reasons, the following order is made:
1. The
appeal is upheld.
2.
The
order of the Labour Court is set aside and substituted as follows:
“
1.
The applicants’ claim of unfair
discrimination is dismissed.”
SAVAGE
AJA
Coppin
JA and Molefe AJA agree.
APPEARANCES
:
FOR
THE APPELLANT: Mr
H Gerber
Instructed
by Clarinda Kügel Attorneys
FOR
FIRST RESPONDENT:
In
person
FOR
FURTHER RESPONDENTS:
No
appearance
[1]
Rule
5(17) states: ‘If the appellant fails to lodge the record
within the prescribed period, the appellant will be deemed
to have
withdrawn the appeal, unless the appellant has within that period
applied to the respondent or the respondent's representative
for
consent to an extension of time and consent has been given. If
consent is refused the appellant may, after delivery to the
respondent of the notice of motion supported by affidavit, apply to
the Judge President in chambers for an extension of time.
The
application must be accompanied by proof of service on all other
parties. Any party wishing to oppose the grant of an extension
of
time may deliver an answering affidavit within 10 days of service on
such party of a copy of the application.’
[2]
Section
6(1) of the EEA provides:
“
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.”
[3]
Committee
on Economic, Social and Cultural Rights
CESCR
General Comment 20: Non-Discrimination in Economic, Social and
Cultural Rights (art 2, para 2
)
E/C.12/GC/20 (4–22 May 2009) at [24].
Angelo
Capuano. “The Meaning of ‘Social Origin’ in
International Human Rights Treaties: A Critique of the CESCR’s
Approach to ‘Social Origin’ Discrimination in the ICESCR
and Its (Ir)relevance to National Contexts Such as Australia.”
New
Zealand journal of employment relations
41.3
(2016): 91 at
97.
[4]
Committee
of Experts on the Application of Conventions and Recommendations,
Equality in Employment and Occupation: Report
III (Part 4B): General
Survey of the Reports on the Discrimination (Employment and
Occupation) Convention (No 111) and Recommendation
(No 111),
International Labour Conference, Agenda Item 3 (1988) 53 [54]
('General Survey 1988') quoted in Capuanop, Agelo
Giving
Meaning to Social Origin in International Labour Organization (ILO)
Conventions, Fair Work Act 2009 (CTH) and the
Australian Human
Rights Commission Act 1986 (CTH): Class Discrimination and Its
Relevance to the Australian Context 84 at
85.
[5]
Harksen
v Lane NO and Others
[1997]
ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC) at para 50.
[6]
Mbana
v Shepstone & Wylie
[2015]
ZACC 11
;
2015
(6) BCLR 693
(CC);
(2015) 36 ILJ 1805 (CC)
at
para 25.
[7]
Mbana
(supra)
at
para 26.
[8]
Harksen
op
cit. at paras 44-47.