About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 93
|
|
Jabu and Others v Gauteng Department Of Economic Development (JS89/18) [2024] ZALCJHB 93 (1 March 2024)
IN THE LABOUR COURT IN
JOHANNESBURG
CASE NUMBER: JS89/18
In the matter between:
KHUMALO,
JABU
FIRST
APPLICANT
LESEJANE,
PATRICK
SECOND
APPLICANT
SEMELA,
MALEFU
THIRD
APPLICANT
and
GAUTENG
DEPARTMENT OF ECONOMIC
RESPONDENT
DEVELOPMENT
Heard: 8 February 2024
Delivered: 1 March
2024
Summary: Employees
located at level 5 claiming for arrear payment from 2012 – 2017
of remuneration applicable to a level 9
rate. Claim essentially a
dispute of interest. Held that the Labour Court has no jurisdiction.
Claim dismissed.
JUDGEMENT
Norton
AJ
Introduction
1.
Three employees, Mr Jabu Khumalo, Mr Patrick Lesejane and Ms Malefu
Semela (the Applicants) worked in the public education
unit in the
directorate called “Client Relations Management” in the
Gauteng Department of Economic Development (the
“Department”
/ the Respondent). In essence they created community awareness about
the dangers of alcohol abuse. Colloquially
the Applicants were called
“education practitioners”.
2.
Their claim in this court is for arrear payment of remuneration for
the years 2012 to 2017, based on the argument that
whilst they were
employed and remunerated at level 5 for Mr Khumalo and Mr Lesejane;
and level 7 for Ms Semela, they should have
been remunerated at level
9. They explain that because the post “ASD Client Relations
Management” (the formal title
given to education practitioners)
advertised in 2015, was ultimately graded at level 9, they should be
compensated at the remuneration
applicable to employees at that
level.
3.
Mr Khumalo
and Mr Lesejane claim R809 712.00 each and Ms Semela claims
R401 752.00. (The difference in the quantum of
the claim between
Ms Semela and her male colleagues is attributed to her higher level).
By way of example: with respect to Mr Khumalo,
in 2012 his annual
salary at level 5 was R123 579. At level 9 in 2012 employees
were earning R236 532.00 per annum. The
difference being
R112 953.00. For Ms Semela in 2012 at level 7 her salary was
R180 489.00. At level 9 employees were
earning R236 532.00
per annum. The difference was R56 047.00.
[1]
The Applicants calculated the difference between the remuneration at
level 5 and level 9 for the years 2012, 2013, 2014, 2015,
2016 and
2017 to get the total quantum of their respective claims.
4.
The Applicants summarise their case succinctly in paragraph 39 of the
Statement of Case as follows,
“
The
applicants have provided their services to the respondent in the
position which is at level 9. Therefore they were entitled
to be paid
in accordance with
(that
) salary level, however despite all
the demands the respondent has failed, and or refused to pay to the
applicants the amount of
money they are entitled to
.”
5.
Legally
speaking, the Applicants submit that the Respondent has breached
section 32
[2]
of the Basic
Conditions of Employment Act, 1997
[3]
(the “BCEA”) and that the Labour Court has jurisdiction
to hear the matter as per section 77(3) of the BCEA.
[4]
For reasons I set out later in this judgment I disagree with both
propositions.
6.
The Respondent denies that there was a breach of the BCEA, or of
their contracts of employment, pointing to the lateral
transfers of
the employees as clerks within the Department at level 5, their none
appointment into the position when it was advertised,
and that whilst
the employees were performing some of the functions envisaged in the
post, they were not performing all, notably
those of a more
complicated nature.
Background
to the Applicants
7.
The three Applicants testified at the trial.
8.
Mr Khumalo joined the Department in 1996 as an Accounting clerk. In
2001 he was appointed as an inspector at the Gauteng
Liquor Board and
later he was transferred to the Liquor Licensing Unit, with a new job
title being “Data Capture” (presumably
date capturer).
Both the inspector and the data capture positions were at Level 5.
Despite the title “data capture”,
it was common cause
that he was performing community education tasks.
9.
The Department, represented by the Chief Director: Resource
Management wrote to him in February 2014 as follows:
“
Transfer:
Please note that you have been transferred …to Liquor
Registration & Licensing however you will be reporting
under the
Education and Awareness Unit…The transfer does not change your
current employment level. A new job profile and
contract will be
given to you with your new duties
…”
[5]
10.
Mr Khumalo replies a few weeks later,
“
I,
Jabu Khumalo agree to a horizontal movement to Liquor Licensing
Office Education Unit. I also state that there will not be any
financial implications to the department as I will be moving on the
same level
.:
[6]
11.
The post “ASD Client Relations Manager” was advertised in
2015. Mr Khumalo applied but was not shortlisted
for an interview.
The post required a tertiary qualification but his highest
qualification was a matric.
12.
Mr
Lesejane’s employment history closely mirrors that of Mr
Khumalo. He joined the Respondent in 1996 as an administrative
clerk
and in 2014 he was transferred to the Liquor Licensing Unit where he
worked as an educational practitioner. His grade remained
“5”.
It was a lateral move. He received a similar letter from the Chief
Director: Resource Management in 2014, and
also agreed that there
would “
not
be any financial implications to the department as I will be moving
on the same level
.”
[7]
13.
Mr Lesejane applied for the post when it was advertised, but
was not shortlisted for an interview. The post required a
tertiary
qualification but his highest qualification was a matric.
14.
For both Mr Khumalo and Mr Lesejane the transfers were an attempt to
keep the men in employment, as their positions as
inspectors had
become redundant. The Respondent in their Heads of Argument explain
that
“
for
several years Mr Khumalo and Mr Lesejane had become idle…and
were without any specific key performance areas. A meeting
was held
with Mr Khumalo and Mr Lesejane, Acting Director Human Resources and
Chief Director: Liquor Licensing. All parties agreed
to the
horizontal transfer to … increase capacity in the Education
and Awareness sub directorate
”
[8]
15.
The Third Applicant, Ms Semela joined the Respondent in 2008 as an
Administration Officer at level 7. In 2009 she was
transferred to the
Gauteng Liquor Board as an educational practitioner.
16.
She had a tertiary qualification and in 2015 applied for the post.
She was shortlisted but ultimately not appointed.
The
Department’s proposed organisational structure (organogram) and
the
description of the post “Client Relations
Management”
17.
In May 2012
the MEC approved an organogram for the various directorates in the
Department.
[9]
Included was the
Directorate: Client Relations Management. The Applicants continued to
perform their community education functions.
18.
The Respondent advertised the post Client Relations Management three
years later. The requisite qualifications were a
diploma or degree in
corporate communication, education and training or public relations.
19.
The duties were described as follows,
“
create
awareness around liquor education in the Gauteng Provance through
exhibitions, workshops, campaigns…Liaise with NGOs
and
community leaders…Conduct research around prevalent liquor
related topics, conduct needs analysis according to regional
dynamics, design and develop training materials…assist in
writing publications for liquor education…”
[10]
20.
The salary indicated on the advert was R270 804.00 per annum.
21.
The Applicants then correlated the salary with the Department’s
salary circular, to conclude that the post for which
they had
applied, was at level 9, and as they had been performing the
functions particular to that post informally since around
2012 they
too should be remunerated at level 9.
22.
The Applicants were not appointed to the post which had now become
formalised.
23.
In November
2017 they launched a grievance unhappy that they had not been
remunerated at the level 9 rate, and unhappy that they
were being
transferred out of the unit to another department to perform
“backscanning” duties.
[11]
They never returned to the directorate: Client Relations Management.
The
Department’s evidence
24.
Ms Lushaba testified for the employer. She held the position
“Director Client Relations Management” and said
it was
her responsibility to oversee the unit. The employer was concerned
with irresponsible drinking and underage consumption
of liquor.
25.
Ms Lushaba heard that 2 people (Mr Khumalo and Mr Lesejane) were
redundant in consumer affairs, and faced retrenchment.
She said she
needed assistance setting up the new unit and they were offered a
transfer to do just that. There were no clear job
descriptions or
titles. The Applicants accepted the transfer on the express proviso
that their levels (at level 5) remained unchanged.
26.
They raised no concerns, until after the job advert came out in 2015,
when they they argued that they should be remunerated
at level 9.
27.
Generally Ms Lushaba said that the Applicants performed
satisfactorily. She encouraged them to apply for the post (there
were
2 positions available), but ultimately they were not appointed. There
were stronger candidates.
28.
She testified, when asked by the court, that the Applicants did not
carry out higher order tasks set out in the duties
advertised such as
conducting research, conducting needs analyses, or developing
training materials. Those sort of tasks were carried
out by the
successful candidates for the post.
29.
Ms Lushaba’s evidence went unchallenged (no cross examination
from the Applicant’s legal representative).
Discussion
and analysis
30.
The Applicants have launched their claim in terms of section 32 of
the BCEA. That section deals with the payment of remuneration
(in
South African currency, within 7 days it becomes due etc). This
section has no bearing on the dispute before us.
31.
In my view, cut to the bare bones, the Applicants claim is for a
retrospective salary increase. That is a dispute of interest
and the
Labour Court has no jurisdiction to entertain the matter. The
employees seek to create new rights, and this may only be
achieved
through a bargaining process.
32.
The Applicants have couched their dispute as one concerning a
contract of employment presumably to bring the matter within
the
jurisdiction of this Court as contemplated in section 77(3) of the
BCEA. Whilst at first glance the dispute does concern a
contract of
employment and the applicable level of the Applicants, which has a
bearing on remuneration; the dispute more intrinsically
analysed is a
salary demand and the Labour Court has no jurisdiction to grant an
order on such a matter. The Applicants certainly
could not
demonstrate any breach to their contracts of employment to bring
their claim within the jurisdiction of the Labour Court.
33.
In an
analogous case,
Gauteng
Provinsiale Administrasie v Scheepers
[12]
the employees were administration clerks who were performing the
duties of network controllers. Network controllers earned higher
salaries and received better benefits. The employees sought the
remuneration packages applicable to network controllers. The issue
came before the Labour Appeal Court, with Conradie JA commenting at
paragraph 8,
“
Generally
speaking a dispute relating to proposals for the creation of new
rights…is a dispute of mutual interest. Such disputes
are
ordinarily resolved by collective bargaining
”.
[13]
34.
Arguably though the Applicants could have characterised their dispute
as one about an Unfair Labour Practice relating
to Promotions, in
terms of
section 186
(2)(a) of the
Labour Relations Act, 1995
and
could have referred the matter to the GPSSBC for arbitration.
Arguably too, the Applicants could have pursued an unfair
discrimination
claim under
section 6(4)
of the
Employment Equity Act,
1998
at the CCMA. (Similar pay for work of similar value). This is
not to suggest that such claims would have had good prospects, but
simply to point out at a notional level that the facts could have
given rise to different characterisations, and dispute resolution
fora
and processes.
35.
Even if I am wrong on the jurisdiction point, I am unpersuaded that
the Applicants have made out a case for the relief
they seek. I say
so because the merits of their claim for arrear payments for
remuneration at level 9 for the years 2012 –
2017 is weak for
three reasons: firstly they consented to a horizontal / lateral move
remaining at level 5; secondly they failed
to be appointed into the
post when it was advertised, they simply did not have the
qualifications, and there were stronger candidates
in the arena; and
thirdly they did not perform the more complex tasks required such as
designing training materials or conducting
research – they were
not carrying out all the duties expected of an incumbent in the level
9 post.
36.
The Applicants cannot point to a breach of their contracts of
employment. They seek to claim a higher remuneration, for
which there
is little merit. Ultimately their claim is simply a demand, which
constitutes a matter of mutual interest. The Labour
Court has no
jurisdiction in this matter.
37.
For the reasons set out above, their claim fails.
38.
In the circumstances I make the following order:
Order
39.
The Applicant’s claim is dismissed.
40.
No order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants:
S Mabaso
For
the Respondents: Adv Malungani
[1]
Statement of Claim, pgs 11 and 13.
[2]
Payment of remuneration
[3]
Act 75 of 1997
[4]
Jurisdiction of the Labour Court to determine disputes about
contracts of employment
[5]
Pleadings page 38
[6]
Pleadings pg 39
[7]
Pleadings page 60 and 61.
[8]
Paragraph 8
[9]
Annexure “D”
[10]
Respondents bundle of documents, pg 20
[11]
Pleadings pg 15. The GPSSBC arbitrated their dispute, characterised
as an unfair labour practice: demotion, when in 2017 they
were
transferred out of the Directorate. The case number is GPBC
241/2018. The arbitrator awarded 2 months compensation each.
[12]
(2000) 21 ILJ 1305 (LAC)
[13]
See too
Farhana
v Open Learning Systems Education Trust
(2011) 32 ILJ 2128 (LC)