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[2017] ZALAC 78
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Minister of Correctional Services and Others v Duma (CA10/2016) [2017] ZALAC 78; (2017) 38 ILJ 2487 (LAC) (23 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA10/2016
In
the matter between:
MINISTER
OF CORRECTIONAL SERVICES
First Appellant
NATIONAL
COMMISSIONER,
CORRECTIONAL
SERVICES
Second Appellant
REGIONAL
COMMISSIONER CORRECTIONAL
SERVICES
(WESTERN
CAPE)
Third Appellant
and
ZAMEKA
AGATHA
DUMA
Respondent
Heard:
11 May 2017
Delivered:
23 June 2017
Summary:
Employee claiming unfair discrimination based on geographical area in
the grading process of her position – Held
that:
Employee
required to show that the employer’s conduct was unfair and
amounted to a differentiation on geographical ground
and that the
practice was irrational and impaired her dignity - employee required,
at the very least, to show that the nature and
volume of work which
she performed in her position was similar to that of legal officers
holding the same position in the four
provinces who occupied a higher
grade level and thus that the ground of differentiation was indeed
geographical location - no concrete
evidence other than inferences
sought to be drawn by employee to indicate that the basis for this
differentiation was geography
- employee failing to discharge
the burden of proof in that the inference that she seeks to draw from
the stated case is not the
most readily apparent and acceptable
inference from a number of possible inferences. Appeal upheld with
costs – Labour Court’s
judgment set aside.
Coram:
Tlaletsi AJP, Davis JA and Phatshoane AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This case concerns unfair
discrimination and its determination in terms of s6 of the Employment
Equity Act 55 of 1998 (“EEA”).
[2]
This dispute was brought before
the court
a quo
in terms of a stated case in terms of which respondent claimed that
she was discriminated against on the grounds of “her
geographical location”. Respondent was successful in the court
a quo
which held that she had suffered from unfair discrimination and
ordered the appellants to pay an amount equivalent to the difference
between the remuneration she received from August 2009 to the date of
the court order on 02 February 2016. The amount of the remuneration
was defined as that which she would have been received during that
period, “had she been graded on level 9 as at the date
of her
translation in terms of the Occupational Specific Dispensation (OSD)
as of 1 July 2007”. The court
a
quo
further ordered that
within one calendar month from the date of the court order, the
appellants were to adjust the monthly remuneration
paid to respondent
to align it with the current remuneration entitlement of an employee
with her job description, namely on a level
9 post prior to
translation in terms of the OSD.
[3]
It is against this order that
appellants have approached this Court, with the leave of the court
a
quo
.
The
material facts
[4]
As indicated, the case came
before the court
a quo
as a stated case. Accordingly, the facts upon which the judgment of
the court
a quo
was predicted are common cause. The facts, as set out in the stated
case, can be summarised thus: respondent was employed as custodial
officer in the Department of Correctional Services, Western Cape
(“the department”) at salary level 3 on 8 September
2000.
Subsequently she completed a BJuris degree which made her eligible to
be appointed as a legal administration officer.
[5]
On 1 August 2006, respondent
was duly appointed as a legal administration officer, being the
equivalent to a senior correctional
officer at the Voorberg
Management Area in Western Cape Province, having applied for the
position which was advertised and filled
at salary level 8.
[6]
On 07 February 2008, an
agreement was reached that the General Public Service Sectorial
Bargaining Council (“GPSSBC”)
to implement
retrospectively PSCBC Resolution 1 of 2007 in respect of the
development and implementation of the applicable OSD
from 1 July
2007. The Minister of Public Service and Administration issued a
determination on 29 April 2008 in which he stated
that “grading
of jobs is centrally determined in terms of the OSD and the
Minister’s determination and departments
may not deviate in
this regard. Therefore (re) grading of jobs by
departments by means of the prescribed job evaluation
system is not
permissible”.
[7]
On 16 September 2009,
respondent, together with two other senior correctional officers,
launched a collective grievance claiming
that they should have been
appointed on salary level 9. The grievance could not be resolved and
respondent and the other two officials
referred an unfair labour
practice dispute to the GPSSBC.
[8]
The Commissioner, who was duly
appointed, ruled that the GPSSBC lacked jurisdiction, in that this
dispute did not fall within the
purview of s186 (2)(a) of the Labour
Relations Act, 66 of 1995, (“LRA”) as it dealt with
unfair conduct by the employer
relating to the promotion, demotion or
the provision of benefits to an employee. The respondent then
referred the dispute on 1
June 2012 to the Commission for
Conciliation Mediation and Arbitration (CCMA), which was subsequently
referred to the Labour Court
on 18 August 2012.
[9]
The essence of the dispute
between the parties is captured in the stated case thus:
‘
Duma
concedes that the grading of her job was regulated by the
Occupational Specific Dispensation (OSD) which abolished the previous
salary levels with effect 1 July 2007.
However,
she is not seeking to be placed at level 9 or 10. Rather, she
seeks an order that she ought to have been placed at
level 10,
alternatively level 9, and translated through the various levels or
grades accordingly.
There
is no dispute that Duma was correctly translated onto the new
dispensation after the introduction of the OSD. There is also
no
dispute that she would have translated onto a higher level if she had
been on a higher level at the time the OSD came into effect.
Duma
claims that she was discriminated against by virtue of the fact that
employees with similar job descriptions in other provinces
were at
Assistant Director salary level 9. The mere fact of their being
in different locations (geographic location being
the ground of
discrimination) is arbitrary and affects the applicant’s
dignity on a comparably serious manner to the grounds
listed in the
Employment Equity Act 55 of 1998 (‘the EEA’). She was
thus discriminated against and claims that the
discrimination was
unfair.
Duma
concedes that she bears the onus to prove both the alleged
discrimination and its alleged unfairness.
The
respondents deny that the manner in which Duma was treated was
motivated by discrimination on arbitrary grounds i.e. it denies
that
it discriminated against Duma.’
The
judgment of the court
a quo
[10]
In finding for the respondent,
Rabkin-Naicker J held that, although respondent’s claim was
based on an unspecified ground
of discrimination, it behoved the
appellant to put up a case as to why the respondent did not suffer
unfair discrimination; that
is it was required to justify the
differentiation so alleged. Expressed differently, if respondent had
been employed in another
province, she would have held a position at
level 9 in terms of the OSD. In dealing with the evidence presented,
the learned judge
held:
‘
There
appears to be little more than a bald denial by the respondents that
unfair discrimination has taken place. It is recorded
by the
respondents in the stated case that: “The respondents deny that
the manner in which Duma was treated was motivated
by discrimination
on arbitrary grounds. i.e. it denies that it discriminated against
Duma.” Nor is the issue of the purpose
of the differentiation
between the Western Cape posts and the posts in other provinces dealt
with. It would appear that the
respondents, in their defence of
the matter, are more concerned with the remedy the applicant seeks
and whether it is competent
for the court to grant that relief.
On
the other hand, the submissions on Duma’s behalf that it must
be accepted that the discrimination against her was unfair
are
compelling. These include that:
1.
She
was treated arbitrarily on a ground that impacted on her dignity;
2.
The
respondents have put up nothing to show that it was necessary to
differentiate between Mangers: Legal Services in the Western
Cape
differently from their counterparts in other provinces. There
is no apparent purpose for the distinction in treatment;
3.
The
applicant has been prejudiced financially over a number of years
given that the effect of the discrimination was that she was
not
remunerated at the correct levels;
4.
Any
distinction between employees based solely on the area of the country
is which they work is, given our history, anathema to
the society
envisaged by the Constitution.
5.
The
EEA is premised on amongst others giving effect to the right to
equality and the eradication of discrimination.
I
therefore accept that Duma has met the onus of proving that the
discrimination was unfair.’
It
is this finding and its underlying reasoning that is assailed by
appellants before this Court.
The
applicable law
[11]
In order to evaluate the
dispute as presented by the parties to this Court, it is necessary to
consider the relevant law. Section
6(1) of the EEA provides that no
person may unfairly discriminate, directly or indirectly, against an
employee in an employment
policy or practice on one of a number of
its specified grounds as set out in the section, which include “on
any other arbitrary
ground”. Turning to s6(2) of the EEA, it is
not unfair discrimination to take affirmative action measures
consistent with
the purposes of EEA or to distinguish, exclude or
prefer any person on the basis of an inherent requirement for a job.
Section
11(1) provides that, if unfair discrimination is alleged on a
ground listed in s6(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 not unfair or is otherwise justifiable.
Section 11(2), provides that if unfair
discrimination is alleged on an arbitrary ground, the complainant
must prove, on a balance
of probabilities, that
(a)
the conduct complained of is not rational;
(b)
the conduct complained of amounts to discrimination; and
(c)
the discrimination is unfair.
It
is the latter section which clearly is central to the dispute between
the parties in the present case.
[12]
In
Leonard
Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd
and Others
[1]
the court said “discrimination is unfair if it is reprehensible
in terms of the society’s prevailing norms. Whether
society
will tolerate the discrimination depends on what the object is of the
discrimination and the means used to achieve it.
The object must be
legitimate and the means proportional and rational”
[2]
.
[13]
This
dictum
was approved of in
SA
Airways (Pty) Ltd v Janse van Vuuren and Anothe
r
(2014) 35 ILJ 2774 (LAC) at para 41. To determine whether the ground
alleged constitutes unfair discrimination, recourse must
also be had
to the
dictum
of Ngcobo J (as he then was) in
Hoffmann
v SA Airways
(
Hoffmann)
:
[3]
‘
At
the heart of the prohibition of unfair discrimination is the
recognition that under our Constitution all human beings, regardless
of their position in society, must be accorded equal dignity.
That dignity is impaired when a person is unfairly discriminated
against. The determining factor regarding the unfairness of the
discrimination is its impact on the person discriminated
against.
Relevant consideration in this regard include the position of the
victim of the discrimination in society, the purpose
sought to be
achieved by the discrimination, the extent to which the rights or
interest of the victim of the discrimination have
been affected and
whether the discrimination has impaired the human dignity of the
victim.
’
[4]
[14]
It follows therefore that, in
this case, respondent was required to show that the conduct
complained of clearly amounted to a differentiation
on geographical
grounds and that it was unfair, on the basis of principles set out in
the
dictum
in
Hoffmann, supra;
hence
the practice was not rational and impaired her dignity.
Respondent’s
case
[15]
The case put up by respondent,
who bore the burden to prove that the conduct of which she alleged
fell within the scope of s6(1)
EEA, amounted to the following:
1.
She was treated arbitrarily on
a ground that impacted significantly on her dignity in that to use a
person’s geographical
location as the basis for a pay
discrimination was prejudicial, inherently arbitrary and reproduced a
sad history of this country
which had distinguished between people
based on geographical location. Further, it failed to recognise that
employees do not always
have the capacity to choose where they wish
to live but are compelled by circumstances to live in a particular
location; hence
the pernicious character of discrimination by way of
evidence which showed clear differentiation on the grounds of
geographical
location.
2.
The appellants had placed
nothing before the court
a
quo
to show that it was
necessary to treat respondent in the alleged manner or that they were
justified in treating respondent differently
from her counterparts in
other provinces. There was, in other words, no argument to gainsay
that this differentiation had not prejudiced
her financially over a
number of years.
Appellants’
case
[16]
According to appellants,
respondent was appointed Manager: Legal Service: Voorberg Management
Area Western Cape Region with a salary
notch of R 122, 841.00 per
annum (level 8) with effect from 1 August 2006. Appellants contended
that the effect of PSCBC Resolution
1 of 2007, which provided for the
implementation of OSD for qualified legal professionals with effect
from 1 July 2007, cannot
be interpreted to have transformed the
appointment of respondent from level 8 to level 10 or even level 9.
The fact that the legal
service managers in four other provinces,
namely Limpopo, Mpumalanga, North West and KwaZulu, are characterised
as level 9 employees
did not meant that it automatically could be
concluded, without more, that it was unfair for respondent to be
employed at level
8.
[17]
Appellants contended further
that, while it might be correct that legal services managers in the
Department would perform the same
kind of work no matter where they
are, the volume of work so performed may differ from region to
region. The geographical location
of the post was, in the view of
appellants, an improper finding upon which to justify a conclusion
that discrimination as contemplated
in s 6 EEA had taken place.
[18]
As from the implementation of
OSD, regulations have been set out which provided in detail the work
that was required by employees
at various levels in the Department
and the requirements which were demanded in order to be appointed at
a particular level. Appellants
contended that the geographical
location could serve as a basis to categorise the level differently
by taking into consideration
the size of the correctional facility,
the number of inmates, the costs of living in the area concerned and
the attractiveness
of the area itself. Furthermore, there were at
least four other provinces, in addition to the Western Cape, where
respondent’s
post had been graded as a level 8.
[19]
The relevant objectives of the
OSD of July 2007 were captured as follows:
‘
The
grading of the jobs is centrally determined in terms of the OSD and
the Minister’s determination, and departments may
not deviate
in this regard. Therefore, the (re)grading of jobs by
departments by means of the prescribed job evaluation system
are not
permissible
.’
The
OSD had, in the view of appellants, set out comprehensively the basis
by which the grading of jobs would take place. The objectives
and the
set of criteria included in the OSD were never placed in dispute.
Hence, appellants contended there was no further evidence
which was
required of them to rebut the inferences sought to be drawn by
respondent; that is criteria other than geographical location
could
plausibly explain the basis of respondent’s grading.
Evaluation
[20]
As was set out in the formal
grievance form submitted by respondent and two others on 16 September
2009, “it is unfair that
some regions LAD’s are in ASD
level while their job descriptions are the same benchmarking should
be done for equality.”
The question for determination is
whether, absent any further evidence provided by appellants, it can
be concluded that the act
of being graded on a different level to
their counterparts in four provinces, is without more, sufficient to
justify discrimination
on the grounds of geographical location which
then falls within the ambit of s 6 EEA.
[21]
Two decades ago in
Louw
v Golden Arrow Bus Services (Pty) Ltd
[5]
Landman J (as he then was) wrote:
‘
Discrimination
on a particular “ground” means that the ground is the
reason for the disparate treatment complained of.
The mere
existence of disparate treatment of people, for example, different
races is not discrimination on the ground of race unless
the
difference in race is the reason for the disparate treatment.
Put differently, for the applicant to prove that the difference
in
salaries constitutes direct discrimination, he must prove that his
salary is less than Mr Beneke’s salary because of his
race.’
[6]
Hence,
a claimant in an equal pay claim must establish that the work done by
a person who can be reliably classified as a comparator
is the same
or similar work. In a claim for work for equal value, it behoves a
claimant to establish that the tasks performed by
the comparator and
the claimant are of equal value, having regard to the required degree
of skill, physical and mental effort,
responsibility and other
factors. If one examines the text of the OSD, it is clear that care
was taken to provide for the scenario
that, where a particular legal
officer for example, performs certain tasks which require a
particular amount of time, another officer
occupying the same
position who has a more demanding set of work pressures may be shown
justifiably to be paid more.
[22]
Agreed that respondent is able
to show a comparator of “Manager: legal Services” and
that legal service managers in
four provinces are categorised at
level 9. However, absolutely no evidence as to the nature of the work
undertaken by the legal
service managers in these provinces and why
in other provinces they are not categorised at level 9 employees was
available to the
Court. Respondent was required to establish a link
between the alleged unfair differentiation; that is a difference in
remuneration
for what she considered to be the same work or work or
work of equal value, and her geographical location. See
Mangena
and others v Fila South Africa (Pty) Ltd and others
(2010) 31 ILJ 662 (LAC) (
Mangena)
.
[23]
The question with which the
court grappled in
Mangena,
supra,
comes back to haunt
this case, namely was there an adequate factual foundation to sustain
the claim that respondent was on a salary
notch which was unjustified
because of her geographical location. It is this factual foundation
which permits a court to examine
whether the complainant suffered an
assault to her dignity and whether her rights or interests have been
unfairly affected.
[24]
The shadow of these principles
looms large in the present dispute precisely because it was fought
out on the basis of a stated case.
It may well be, given the
notorious inability of our legal system to expedite trials so that
they are reasonably affordable for
litigants such as the respondent,
that respondent had little option but to litigate on the basis of a
stated case. But the difficulty
with a stated case in general and the
facts of this case in particular is that in an EEA based case, a
burden of proof rests upon
a claimant such as respondent. She was
required, at the very least, to show that the nature and volume of
work which she performed
in her position was similar to that of legal
officers holding the same position in the four provinces who occupied
a higher grade
level and thus that the ground of differentiation
(which was not a specified ground) was indeed geographical location.
[25]
There is no concrete evidence
other than inferences sought to be drawn by respondent to indicate
that the basis for this differentiation
was geography. In other
words, absent an inference which must be the only reasonable one to
be drawn from the facts which emerged
from this stated case, there is
no evidential basis by which respondent sought to discharge the
initial
onus
.
[26]
In my view, it cannot be
concluded that respondent’s posting was attributable to
geographical location and hence formed the
basis for differentiation
which then fell within the scope of s6 EEA. My reason is the
following: On the basis of the stated case,
respondent cannot
discharge the burden of proof which rests on her, in that the
inference that she seeks to draw from the stated
case and hence rely
upon to justify her claim is not the most readily apparent and
acceptable inference from a number of possible
inferences that might
be drawn as to why a manager in the Western Cape is employed at a
level 8 and a legal manager in another
province is at a level 9.
Differentiation of work load is as plausible a reason as is
geographical location. Hence inferential
reasoning alone cannot
justify respondent’s case.
[27]
For all of these reasons
therefore the following is ordered:
1.
The appeal is upheld with
costs, including the costs of two counsel.
2.
The order of the court
a
quo
of 2 February 2016 is
set aside and replaced with the following order:
The appeal is dismissed with costs.
___________________
Davis
JA
Tlaletsi
AJP and Phatshoane concur in the judgment of Davis JA
APPEARANCES:
FOR
THE APPELLANTS:
Nazir Cassim SC
Instructed by State Attorney (Paul
Pio)
FOR
THE RESPONDENT:
CS BOSCH
Instructed by Bradley Conradie
Attorneys
[1]
(1998) ILJ 285 (LC).
[2]
At 295.
[3]
2001 (1) SA 1 (CC).
[4]
At para 27.
[5]
(2000) 21 ILJ 188 (LC).
[6]
At 197.