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[2021] ZALAC 29
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Mdunjeni-Ncula v MEC, Department of Health and Another (PA10/2019) [2021] ZALAC 29; (2021) 42 ILJ 2393 (LAC); [2021] 12 BLLR 1195 (LAC) (20 September 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PA10/2019
FUNDISWA
MDUNJENI-NCULA Appellant
and
MEC, DEPARTMENT OF
HEALTH First
Respondent
DR T
MBENGASHE Second
Respondent
Heard:
24
August 2021
Delivered:
20
September 2021
Coram:
Davis
JA, Coppin JA and Kubushi AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This
case concerns both the scope of the section 6 of the Employment
Equity Act 55 of 1998 (‘EEA’) and the evidence
which is
required to trigger its application. In this appeal, the appellant
contends that she was unfairly discriminated against
on the basis of
gender in that she was paid less remuneration in performing the same
or similar work to that of her fellow male
employees.
The factual matrix
[2]
Much
of the relevant factual matrix is common cause. In May 2014, the
Department of Health, Eastern Cape (‘the Department’)
advertised a position of Senior Legal Administrative Officer at a
salary range of between R 317 241.00 and R 771 078.00 per annum.
The
appellant applied for this position and was shortlisted and
subsequently interviewed. At the time that she made her application,
she had been employed at the Chris Hani Municipality earning a salary
of R 504 038.44 per annum at a grade 8 level. She remained
in this
position from 1 July 2012 until 31 May 2014. However, from 1 July to
18 November 2014, that is immediately prior to being
informed that
she was the successful candidate for employment, she had been
employed by Adv Xola Stewart Nyangiwe as a legal researcher
at which
stage she was earning R 30 000 per month. Under cross-examination,
she conceded that this was the amount that she had
earned prior to
assuming office in the Department.
[3]
On
20 October 2014, she was thus offered the position of Senior Legal
Administrative Officer and accepted this offer on 23 October
2014 on
condition that she would be remunerated in the amount of R 658
998.50. Her counter offer was not accepted by the respondent
and on 1
December 2014 she reported for duty, notwithstanding that she
continued to request to a review of her salary.
[4]
Following
an attempt to resolve the issued internally, the second respondent
authorised that a revised offer be made. In terms of
this revised
offer, instead of the appellant being paid R 340 716 per annum, she
would be paid at the equivalent level of the remuneration
received at
her previous employer, being R 360 000.00 per annum. Accordingly, on
2 March 2015 she was informed of the revised offer
in the amount of R
361 623.00.
Material
aspects of appellant’s case
[5]
In
support of her case that she had suffered discrimination in breach of
ss 6(1) and (4) of the EEA, the appellant sought to invoke
a set of
comparators based on remuneration offered to three other employees.
In the first place, she referred to a recommendation
that had been
made by the respondents to offer the position in which she was
ultimately employed to a Mr Ganyaza. He was offered
a remuneration
package in the amount of R 532 278.00. The appellant contended that
both she and Mr Ganyaza met the minimum requirements
relevant for the
post and that other than gender differences nothing separated the two
of them in terms of qualifications and requisite
experience.
Nonetheless, the offer that she received was far lower than that made
to him being in the initial amount of R 340 716.00
compared to R 532
278.00. Significantly for the purpose of this case, Mr Ganyaza
declined the offering of employment as a result
of which the
appellant was appointed.
[6]
In
addition, the appellant referred to an offer of employment made to a
Mr Manxiwa on 9 March 2015, again in the amount of R 340
716.00. Mr
Manxiwa was not satisfied with this initial offer and on 13 May 2015
he requested an increase to an amount similar to
that which he earned
in his previous employment at the Department of Education. After
further communication between Mr Manxiwa
and respondent a revised
offer of R 610 716.00 per annum was made to him.
[7]
The
appellant raised a third case. Mr Ngozi had also applied but
unsuccessfully for the post into which the appellant was appointed.
It was common cause that he was the appellant’s subordinate in
the organisation but received a higher salary than the appellant,
albeit that she was his supervisor. However, it appeared that Mr
Ngozi had been in the employ of the State from 1983 and had been
a
legal administrative officer since 2003. He had over 13 years of
experience with the Department and according to respondents
it was
his length of service which resulted in him earning a higher salary
at the level of a legal administrative officer than
the newly
appointed senior legal administrative officer, being the appellant .
[8]
On
the basis of these comparators, the appellant contended that it had
suffered discrimination in contravention of s 6 of the EEA
and thus
sought relief from the court
a quo
The judgment of the
court
a quo
[9]
Basing
her judgment on
Louw v Golden Arrow Bus
Services (Pty) Ltd
(2000) 21 ILJ 188
(LC), Lallie J held that the appellant had been required to establish
that sex or gender was the reason for the
disparate treatment which
formed the basis of her claim. After examining the cases the
appellant alleged were appropriate comparators
Lallie J concluded
‘‘It is common cause that Ganyaza was never an employee
of the respondent. I therefore accept that
he cannot be used by the
applicant as a comparator to establish that he earned more than her
when they were doing work of the same
value. As he declined the
position he was never an employee. He neither worked for nor earned a
salary from the respondent. The
applicant could also not establish
that her salary offer was less than Ganyaza’ because of her
gender or sex. It is common
cause that when the respondent offered
Manxiwa the position the salary scale was the same as the one it
offered the applicant.
The applicant did not establish discrimination
on grounds of sex or gender. The respondent proved that she was
remunerated in terms
of the relevant legal prescripts which justified
her comparators’ higher salaries. As the respondent’s
decision to
hire Manxiwa at a higher salary was unlawful, the
unlawful salary rate cannot be relied upon to prove discrimination’’.
It was on this basis that Lallie J dismissed the appellant’s
claim.
The Appeal
[10]
In
order to determine the appeal, it is necessary to examine the
applicable law. 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, ethnical social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscious,
belief, political opinion, culture, language, birth or any other
arbitrary grounds
.’
[11]
An
important amplification is given to this provision in terms of s 6(4)
of the EEA which provides:
‘
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 sub-section 1,
is unfair
discrimination
.’
[12]
The
burden of proof required in a case brought in terms of s6 of the EEA
is set out in s 11(1):
‘
(1)
If
unfair discrimination is alleged on a ground listed in s 6(1), the
employer against whom the allegation is made must prove, on
a balance
of probabilities, that such discrimination –
(a)
did
not take place as alleged; or
(b)
is
rational and not unfair, or is otherwise justifiable.’
[13]
There
has been a considerable debate in the Labour Court with regard to the
phrase “on any other arbitrary ground”;
in particular
whether “arbitrary grounds” in s6(1) includes not only
the prohibition of discrimination on a ground
that undermines human
dignity but any ground which has shown to be irrational. In
Naidoo
and others v Parliament of the Republic of South Africa
[2019] 3 BLLR 291
(LC) Prinsloo J, after a careful analysis of the
jurisprudence generated in the Labour Court on this question, (see in
particular
Pioneer Foods (Pty) Ltd v
Workers
Workers
Against Regression & others
(2016)
37 ILJ 2872 (LC)) held at para 31 “the crux of the test for
unfair discrimination is the impairment of human dignity
and adverse
affecting the comparable similar manner and not the classification of
the ground as listed or unlisted. The distinction
between listed and
unlisted grounds effects only the burden of proof differentiation on
both the listed an analogous ground amounts
to unfair discrimination
only of the differentiation has indeed affected human dignity or has
had an adverse effect in a similar
serious consequence.”
[14]
It
is significant that the EEA provides in terms of s 6(1) for a
prohibition of unfair discrimination “any other arbitrary
grounds” By comparison the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 (PEPUDA) also introduces
a
concept of analogous grounds which are defined in s 1 of PEPUDA as:
‘
(b) any
other ground where discrimination based on that other ground –
(i)
causes
or perpetuates systemic disadvantages;
(ii)
undermines
human dignity; or
(iii)
adversely
affects the equal enjoyment of a person’s rights and freedoms
in a serious manner that is comparable to discrimination
on one of
the listed grounds.’
[15]
It
is therefore arguable that the phrase ‘any other arbitrary
grounds’ extends beyond the genus of the listed grounds
set out
in s 6 (1) of the EEA in that the use of ‘other arbitrary
grounds’ encompasses a broader scope than the specific
provisions of
analogous
grounds in PEPUDA. However, in
Harkson
v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 46 the Constitutional Court, albeit in
the interpretation of the equality provision in terms of s8 of the
Interim
Constitution (Constitution of the Republic of South Africa
Act 200 of 1993), said the following about meaning of discrimination:
‘‘
There
will be discrimination on an unspecified ground if 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 comparably serious manner.’ Although
Harkson
was decided in terms of s 8 of the Interim Constitution, the court’s
approach clearly dictates adherence to the narrow approach
to the
meaning of “other arbitrary grounds”.
It
is however not necessary to decide this particular question in the
present case.
[16]
The
appellant’s case was clearly based on discrimination on the
grounds of gender. Her argument was that on the basis of the
three
alleged comparative cases which she raised, the respondents are in
breach of s6(1) read together with s 6(4) of the EEA.
In other words,
the appellant’s case had to be established on the basis that
the differentiation of salary between the three
other employees and
herself amounted to discrimination on the basis of her sex/gender.
Regrettably, the facts do not show that
any of the three cases that
she raised as the basis of comparison justify the conclusion that any
salary differentiation was based
on a prohibited ground of
discrimination. In the first case, Adv Ganyaza was never employed by
the Department. Indeed, his details
were not provided on the table of
comparators which the parties agreed should form the basis of the
case presented to the court
a quo
.
[17]
Turning
to the case of Mr Manxiwa, the appellant correctly noted that on 26
August 2015, the Department made an offer to him in
the amount of R
610 716.00. However, on 13 September 2016, the respondents were
informed by the Department of Public Administration
that this offer
was an unlawful one. Thus, in the letter sent to the second
respondent on 13 September 2016 by the Department of
Public
Administration, the following appears with regard to Mr Manxiwa’s
salary:
‘
It
should be noted that Occupational Service Dispensation (OSD) for
legal Qualified Personnel is a different salary dispensation
regulated by a Collective Agreement and deemed a career change for
Public Servants not covered by an OSD. Furthermore, paragraph
26 of
the Ministerial Determination stipulates that an employee appointed
to advanced production and supervisory post must start
on the minimum
notch attached to the specific post.
Taking
the above into consideration, Mr Manxiwa’s non-OSD salary is
not protected upon appointment into an OSD post. I therefore
advise
that Mr Manxiwa is correctly appointed and remunerated on the minimum
salary notch of Senior Administration (MR-6) post.’
[18]
In
December 2016, Mr Manxiwa left the employ of the Department.
Significantly, in terms of lawful remuneration to which Mr Manxiwa
was entitled, it was conceded that he had been correctly offered the
same remuneration that had initially been offered to the appellant
being R 347 160.00. It can hardly be argued that a revised salary
offer which was unlawful can be used as a basis to ground a case
of
discrimination on the grounds of gender.
[19]
In
the case of Mr Ngozi as I noted earlier in this judgment, he has been
employed by the State from 1983 and had been a legal administrative
officer from 2003. His 13 years of experience with the Department
meant that he had received various salary increments during the
course of his career. In short, the difference between the amount
that he was remunerated and that which was offered to the appellant
was a direct result of his length of service which caused him to be
the recipient of grade progression and hence salary increases.
In
short, the differentiation between the salary received by the
appellant and Mr Ngozi was based on the manifestly rational ground
of
length of service and could therefore not be employed on any basis as
a cause of action grounded in the EEA.
[20]
In
summary, the appellant’s case was based on three alleged
comparators which I have analysed in this judgment. None of these
cases provides the requisite evidence to show that any
differentiation in salary between the appellant and any of the three
cases
was based on discrimination sourced on the ground of gender or
sex. In one case an individual had not been employed by the
Department.
In another the claim of differentiation was based on an
unlawful act and in the third the differentiation was based on length
of
service.
[21]
In
the result, the approach adopted by the court
a
quo
must be upheld. Accordingly, the
appeal is dismissed with costs.
Davis
JA
Coppin
JA and
Kubushi
AJA concur.
APPEARANCES:
FOR
THE APPELLANT: A
dv
M Simoyi
Instructed
by Java Inc
FOR
THE RESPONDENTS:
Adv
A Rawjee
Instructed
by the State Attorney