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[2012] ZALCCT 52
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Janse van Vuuren v South African Airways (Pty) Ltd and Another (C420/06) [2012] ZALCCT 52; (2013) 34 ILJ 1749 (LC); [2013] 10 BLLR 1004 (LC) (1 November 2012)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no: C420/06
In the matter between:
GIDEON JACOBUS JANSEN
VAN VUUREN
..........................................................
Applicant
and
SOUTH AFRICAN AIRWAYS
(PTY) LTD
....................................................
First
Respondent
AIRLINE PILOTS’
ASSOCIATION SOUTH AFRICA
..............................
Second
Respondent
Heard: 10 October 2012
Delivered: November
2012
Summary:
"A
collective agreement is not justification for discrimination"
_____________________________________________________________
JUDGMENT
SHAIK AJ
Introduction
The Applicant was
employed by the South African Airways (Pty) Ltd, a state owned
enterprise, as an airline pilot with the rank
and title of Senior
Captain. Coincidentally, at or about the time that he turned 60
years of age, his employer was engaged in
collective bargaining with
the Air Line Pilots’ Association of South Africa which the
Applicant was a member of. During
the collective bargaining held at
the time, the retirement age of pilots, was amongst other matters,
the subject of collective
bargaining. Whilst the employer and the
association was engaged in the collective bargaining process, the
Applicant turned 60
years of age, the then retirement age, he was
withdrawn from flying duty and instructed to remain at home pending
a recall to
active duty. Whilst on this lay-off, the employer paid
the employee what he believed was a salary due but did so using the
accumulated
leave pay of the employee without his knowledge or on
his authority. The employer and the association concluded a new
collective
agreement on the 11 November 2005 and the employee was
recalled to render active service on or about 9 December 2005.
The Applicant contends
that his employer had introduced new terms and conditions of
employment, for pilots over the age of 60,
which were discriminatory
and unfairly so to him and fellow pilots of that age. And he
contends further, that the employer committed
an unfair labour
practice relating to the provision of benefits.
The issues
[3] The issues which the
Court is required to decide are the following:
(a) Whether or not the
employer has committed an unfair labour practice by debiting the
employee’s leave account during the
period 1 September 2005 to
9 November 2005;
(b) Whether or not the
employer has unfairly discriminated against the employee, on the
ground of his age, by introducing new terms
and conditions of
employment ostensibly in accordance with the collective agreement
dated 11 November 2005.
It is convenient to deal
first with the complaint concerning discrimination and thereafter,
the unfair labour practice. With regard
to the unfair labour practice
suit, by agreement, I serve as Arbitrator.
The facts
I do not intend to
record all of the evidence save that which is necessary and of
relevance to the findings and the order and
award made. The summary,
set out below, features in the submissions made by Adv. Stelzner SC,
Counsel for the Applicant. It is
convenient to use this summary as
the facts are not in dispute, and at any rate, was in accordance
with the evidence led.
Mr. Gideon van Vuuren
commenced employment with SAA as an airline pilot at the age of 26
on 1 June 1972. Over the years, he progressed
to the rank of Senior
Captain at salary level SC 34 effective 1 June 2005. The level, SC
35, is the highest salary level for
a Senior Captain. The reference
to “35” indicates the years of service (the longevity
notch), “SC” the
rank.
A Senior First Officer
(SFO) was remunerated at a lesser salary. Remuneration was
accordingly determined by the rank (position
against which the
employee was held) and the years of service provided for in the
remuneration structure.
In addition, there was a
hierarchy consisting of
inter alia
Senior First Officer,
Captain, and Senior Captain. The position of Pilot in Command of the
aircraft also carried with it seniority
– status and
responsibility.
The applicant turned 60
on 5 August 2005. At the time, the retirement age for pilots in SAA,
which had been increased over the
previous years by agreement with
the union, most recently from 58 to 60, was in the process of being
further negotiated. Pilots
had previously been required to retire at
the end of the month in which they reached the retirement age (as
agreed from time
to time with the union) and would have received
approximately 42% of their monthly salary as a pension on
retirement.
His last day of
employment would have been 31 August 2005 but for the extension of
the retirement age referred to below.
SAAPA and SAA were
engaged in annual collective bargaining to determine salary and
conditions of service at the time. The extension
of pilots’
retirement age was one of the issues which formed the subject of the
negotiations. Other employees of SAA retired
at 63. Pilots, over the
years, had had their retirement ages extended, first from 53 to 58,
and then from 58 to 60. He continued
to be employed throughout this
period in terms of what was referred to as “the over 50’s
contract” after taking
an early payment of part of his pension
option at age 53 in 1998 (to benefit from a tax free lump sum
payment benefit available
to employees in his position at the time).
He was thereafter employed in terms of the so-called fixed term
contract on an ongoing
basis throughout this period and the various
previous extensions of the retirement ages for pilots.
Agreement was reached
between the union and SAA “in principle” on 19 August
2005 that the retirement age of pilots
would be extended to 63. The
mechanics of the agreement needed to be negotiated and the applicant
was informed this would take
some 2 – 3 weeks. A circular to
this effect was sent out by the Association.
It prompted the
applicant to query, with Cathy Bill, General Manager of SAAPA,
whether he would be retained given that the in
principle agreement
had been concluded before his exit date of 31/08/05. Cathy Bill
called him to confirm that he would remain
in the service and would
not exit on 31 August 2005.
The accumulated leave
pay of R330 000 which would otherwise have been due to him on
retirement (and had been paid to him
apparently in error on 31
August 2005) was repaid by him. He completed no exiting
documentation and remained at home on stand-by
awaiting flying
instructions. He had completed recent retesting in July of that year
which would have permitted him to fly until
January 2006 without
further testing. He was ready, willing and able to fly and given the
agreement in respect of the extension
of the retirement age between
the union and his employer his service was not interrupted or
terminated.
The event on which the
fixed term contract would have come to an end, namely the agreed
retirement age, between Union and SAA,
that of 63 as agreed to
between the parties on 19 August 2005, did not present itself prior
to his last day of work.
Although the parties had
agreed in principle to extend the retirement age on the 19 August
2005, the collective agreement was
reduced to writing and signed by
the parties on the 11 November 2005.
In the interim period he
was instructed to remain at home, by way of two phone calls with
Gavin Schmietdiel, HR Officer, SAA,
responsible for pilot matters.
He informed Schmietdiel that he would not be submitting the exit
documents which would have been
due before 31 August 2005 as HR had
approved that he remain in the service after age 60. Schmietdiel
verified this and then called
him back to inform him that he would
be remaining in the service after 31 August 2005 until age 63, i.e.
until 31 August 2008,
his revised exit date. It was after this
call that he received payment for his accumulated leave, an amount
of R330,000.00
after taxation, a benefit due to him on retirement.
He called Schmietdiel to
inform him that this was in error as in terms of SAA’s leave
policy employees may only be paid
out accumulated leave of 90 days
at retirement. Schmietdiel requested that he return the R330, 000.
00 which the applicant duly
did after receiving the account details
from HR. Consequently, his accumulated leave of 90 days with the
monetary value of R330,
000. 00 after taxation, should have been
retained until age 63, at which time the accumulated leave was to
have been paid out
at his then current rate of remuneration.
At no time was he
presented with a new contract, change of conditions of service and
remuneration or any other document for signature.
Nor was he
informed that he had retired. He mandated his union to negotiate for
an extension of the retirement age but not on
the basis that he
would be discriminated against and remunerated at a lower level
because of his age. He also did not agree to
his accumulated leave
being used for the period between 1 September 2005 and the date on
which the MOU referred to hereafter
was concluded (11 November 2005)
nor was he presented with nor did he sign the mandatory leave forms.
He never agreed to take
accumulated leave between 1 September and 9 November 2005. He was
never placed on leave, and did not receive
the usual request to sign
leave forms. He only discovered that all his accumulated leave had
been debited after he reported for
Recurrent Training, when he
received his Remuneration Advices from 1 September 2005 to 30
November 2005 in Johannesburg when
he presented himself for flying.
He was not and could not
have been placed on unpaid leave and never received nor signed any
documents stating this. He had been
requested to wait at home for
call-up in order to resume flying. He was waiting at the behest of
SAA to resume flying after 31
August 2005 to 9 November 2005 and was
thus not "on leave". He was not free to leave home and
expected to be called
up at any time. His medical certificate and
licence was valid since he had completed his six monthly licence and
competency test
at the end of July 2005.
He made several calls
during this period to determine when he could resume flying as SAA
was short of Captains on his aircraft
type (B738) at the time and he
wanted to assist by flying instead of sitting at home. He was unable
to leave home as he could
be called to resume flying duties at any
time.
SAA subsequently,
unilaterally, determined that this period at home was to be treated
as leave, debiting the leave pay due to
him against an “advance
on salary” account without informing him thereof. This appears
to have been done in both
November 2005 and in September 2008 again
when he retired at the age of 63. This much is clear from his
remuneration advices
for this period. It is furthermore common cause
in terms of the pre-trial minute.
The value of the
accumulated leave unilaterally debited by SAA was R330 000.00
as of 31 August 2005.
He was furthermore
discriminated against in that for the period 1 September 2005 to 10
November 2005 he was not paid a salary,
neither at the reduced level
provided for in terms of the MOU to have been with effect from 1
August 2005 already, nor at his
previous level of remuneration at
SC34. The leave pay benefit due to him was used to pay his salary.
SAA and SAPA signed a
Memorandum of Understanding (MOU) on 11 November 2005 confirming
that the retirement age had been extended
with an effective date of
1 August 2005. In terms thereof, it was confirmed that pilots who
were in the employment of SAA as
at 1 August 2005 would remain in
the employment of SAA until they reached the new retirement date of
63.
He did not ‘elect’
to resume duties after the MOU was signed on 11 November 2005. From
1 September – November
2005 he remained available to render
flying duties. He resumed such duties immediately when he received a
call to be at Flight
Operations in Johannesburg (within a day) to
perform his reactivation test in December 2005.
[27] In his testimony,
the employee referred to various discriminatory terms of the
collective agreement titled: ‘Memorandum
of Understanding:
Extension of Retirement Age to 63 years’ which he contended
were discriminatory and unfairly so. The relevant
extracts are quoted
below:
(a) Date of
implementation of the MOU shall be 01 August 2005.
(b) A pilot may retire at
any time between age 50 and 63 at his her discretion and such
retirement shall be final.
(c) Pilots reaching the
age of 60 will be given the choice of whether they wish to continue
to apply for SA a on either domestic
or international reports. Pilots
must indicate the choice to the company at least six months before
reaching the age of 60
(d) If pilots to fly
domestically they will operate as Captains. Pilots who opt to fly
internationally will operate in the position
of first officer on the
current fleet with SFO insignia.
(Note: the reason for the
change of operating status for the long-range pilots is that
operational restrictions limit some of the
destinations to which
pilots over the age of 60 years can operate as pilot in command. Most
of these restrictions are likely to
fall away in November 2006 when
ICAO introduces and amendment to the maximum flying age for the pilot
in command from 60 to age
65.)
(e) All pilots electing
to fly over the age of 60 will be remunerated at salary scale SC 20,
irrespective of whether the fly internationally
or domestically.
(f) Over 60 pilots will
receive general annual increases. No notch increases will apply.
(g) Pilots will not be
permitted to bid to a coastal base after the age of 57.
(h) A pilot over the age
of 60 may not exercise a displacement bid for a category at a coastal
base.
(i) At the end of the
three year period any pilot in service over the age of 60 will revert
to his normal seniority and notch, on
condition they agreed
operational limitations have been lifted as per paragraph A. Back pay
will not be payable.
(j) On reaching age 60,
all pilots shall have the option to take a maximum of 90 days
accumulated leave provided that the company
has received at least six
months notice. Any outstanding leave will be paid out at age 60 at
the current salary scale. Any leave
paid out after the age of 60 will
be paid out at SC 20 salary scale.
[29] The effects of the
agreement as a whole and the terms mentioned above, were the
following:
(a) The terms of the MOU
became the terms and conditions of employment of pilots over the age
of 60; this was clearly an employment
practice or policy as defined
in the EEA
(b) Pilots employed by
SAA beyond the age of 60 were remunerated at a lower rate of
remuneration to that of pilots under the age
of 60 and at a lower
rate of remuneration to that earned by them prior to their turning 60
– their remuneration was reduced
by virtue of their age,
differentiation on a prohibited ground and the for discrimination;
(c) This arrangement
applied to all pilots who were older than 57 and younger than 60 at
the time the MOU was reached, and who had
not retired yet, but not to
those under the age of 57;
(d) Pilots who were
younger than 57 when this agreement was reached, would be entitled to
continue beyond 60 at full pay and without
any penalisation for
having turned 60; further discrimination on the ground of age.
(e) Applicant’s
annual remuneration before he turned 60 at SC34 was R1 476 150-00.
His annual remuneration was reduced to
SC20 R1 113 680-00 upon his
turning 60. This resulted in a R362 460-00 reduction in annual salary
(Total Cost of Employment). He
should have continued to be paid his
remuneration at level SC34 from 1 September 2005, instead he was only
paid his remuneration
from 11 November 2005 and at level SC20 (and
before that his leave pay due to him was utilised to pay his salary
at the lower level).
(f) His remuneration
overnight became less than that of younger pilots (below the age of
60) simply because of his age.
(g) This discrimination
detrimentally affected his and his fellow senior colleagues’
dignity, sense of self worth and morale.
Simply because of their age
they were treated as subordinates of those over whom they had
previously had command on long range
flights and on domestic flights
were paid less for doing exactly the same work as before.
(h) He was paid at the
lower notch of SC20, and not at his previous notch of SC34 for the
period between 10 November 2005 and 31
August 2007, an annual total
cash difference of R269,614,55 during 1 September 2005 and 30 May
2006 and a difference of R343 027,00
per year between 1 July 2006 and
32 September 2007.
(i) He did not receive
any salary for the period 1 September 2005 and 10 November 2005 when
the accumulated leave pay due to him
was utilised by SAA to pay his
salary.
(j) He did not receive
the 2006 longevity increments (notch increases) which he would
otherwise have been entitled to for that year.
The employee lodged a
protest with SAAPA shortly after he became aware of the terms of the
collective agreement and drew attention
to its discriminatory
effects. He also lodged a protest with the Mr. Khayakhulu Ngqulu,
the Chief Executive Officer of SAA.
The collective agreement
was cancelled on 3 September 2007, where after his remuneration and
conditions of service return to 31
August 2005 levels. He received
an extra longevity notch increase to SC 35 which he had previously
been denied.
The employer did not
call any witnesses. The evidence of Mr. Van Vuuren was not
contradicted and the matter falls to be decided
on his evidence.
Differentiation and
Discrimination
As mentioned before, the
employer led no evidence in the matter. In the result, the evidence
of Mr Van Vuuren concerning the change
in terms of conditions of
service and remuneration, the terms of the collective agreement and
its application, and the effects
thereof on him and pilots in
similar position, are accepted as the facts established.
The memorandum of
understanding, expressly provides for a reduction in remuneration of
employees upon their reaching the age of
60 from their previous
remuneration levels to salary scale SC20. This, together with the
other effects, made mention of is clearly
linked to the Applicant’s
age, 60, and it clearly differentiates between him before the age of
60 and his remuneration
post the age of 60.
Clearly, the employer
differentiated between employees on the ground of age and neither
the differentiation nor its effects are
in dispute.
However, Mr. Cassim
submitted that the differentiation, in remuneration and conditions
of service, was not discrimination as envisaged
in terms of the
Employment Equity Act and made a number of submissions to support
this contention. The submissions set out below
are culled from the
Principal Submissions made.
Firstly, as the employee
turned 60 on 5 August 2005, on this date, he was automatically
retired. Thus, so the argument went, the
employee had no entitlement
to any further rights arising from his employment relationship upon
his retirement on 4 August 2005.
Secondly, as on 11
November 2009 the employer and the Association concluded an
agreement – the reference is to the collective
agreement at
times referred to as the MOU - this novated the terms of the
previous employment. It was said that a contract of
novation is one
that extinguishes an existing obligation and at the same time and
replaces it with a fresh obligation. Alternatively,
the collective
agreement was a compromise and in the absence of a reservation of
the right to proceed on the original cause of
action, the compromise
agreement bars any proceedings based on it.
Thirdly, the source of
the employee’s right is the collective agreement. In the
circumstances, it is, contractually speaking,
unlawful to “cherry
pick” certain terms of the collective agreement and request
the court to ignore other terms of
the collective agreement. It was
contended that the employee sought to approbate and simultaneously
reprobate.
Fourthly, his claim must
fail because any rights the applicant acquired were in terms of the
negotiated collective agreement,
and hence the obligations or
liabilities arising there from cannot found the cause of action. The
employee benefited from the
collective agreement; he elected to
participate and benefit from the rights emanating in the collective
agreement and hence cannot
seek to enjoy the rights but not to
participate in the obligations directly flowing there from.
Fifth, the remuneration
and conditions of service was the product of collective bargaining.
The bargaining has not taken place
on the basis of sex, race or
gender. It would be manifestly unfair if a court was simply to
bypass and nullify the product of
collective bargaining. The
collective agreement is given binding effects by the Labour
Relations Act. And, if discrimination
has been established, that the
collective agreement justifies such discrimination and that, in the
circumstances, such discrimination
was fair.
Finally, and in any
event, the employee failed to prove a case based on the breach of
section 6 of the Employment Equity Act.
It was submitted that the
employee failed to prove an employment practice or policy,
discrimination on grounds of age and a comparator.
[41] I turn to deal with
the law and the approach developed by our courts in dealing with
matters of discrimination and the justification
there for. The
primary issue I am called to consider is whether the employer
unfairly discriminated against the employee on the
basis of his age.
The relevant laws are the following:
“
Constitution
9.3. The state may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
9.4. No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
9.5. Discrimination on
one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination
is fair.”
Employment Equity Act
Section 6 (1) 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, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, language and birth.’
The burden of proof in
claims of this nature is set out in section 11 of the Act:
‘
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.’
[42] This in effect
creates a rebuttable presumption that once discrimination is shown to
exist, it is assumed to be unfair and
the employer must justify it.
[43]
The approach developed by the Constitutional Court in
Harksen
v Lane No
1
and subsequently followed
by this Court in
Hospersa
obo Venter v S A Nursing Council
2
was stated as follows:
‘
(a)
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to
a legitimate government purpose? If it does not then there is a
violation of section 8 (1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
(b)
Does the differentiation amount to unfair discrimination? This
requires a two-stage analysis:
(i)
Firstly, does the differentiation amount to ‘discrimination’?
If it is on a specified ground, then discrimination
will have been
established.
(ii)
Secondly, if the differentiation amounts to ‘discrimination”,
does it amount to ‘unfair discrimination’?
If it has been
found to have been on a specified ground, then unfairness will be
presumed. The test for unfairness focus focuses
primarily on the
impact of the discrimination on the complainant and others is in his
or her situation
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of section
8(2).
(c)
Thirdly if the discrimination is found not to be unfair, then a
determination will have to be made as to whether the provision
can be
justified under the limitation clause.’
[44] Although the
reference made above is to the Constitution and another Act, it is
the approach used by the Constitutional Court
in dealing with
discrimination that serves as a guide to determine, in this matter,
if there has been a violation of section 6
(1) of the Employment
Equity Act.
Analysis and
evaluation
[45]
Automatic
Retirement
. This contention is founded on the phrase “will
automatically lapse on the last day of the month in which the pilot
reaches
maximum retirement age” as stipulated in the Fixed Term
Contract dated 20 March 1998.
The “maximum
retirement age” at the time the contract was concluded was 60
years. However, at the time that employee
was due to retire, SAA and
SAAPA were engaged in bargaining to amongst other things, extend the
maximum retire age.
The effective date in
terms of the Fixed Term Contract for the retirement of the employee
was 31 August 2005. However, on the 19
August 2005, it was agreed,
with effect from 1 August 2005, that age 63 would be the new maximum
retirement age.
The employer was aware
that the employee attained the retirement age in terms of the Fixed
Term Contract, but specifically agreed
to retain his services and
keep him in employment. The employment relationship did not, in the
circumstances, automatically terminate
on the employee attaining the
age of 65 years.
The collective
bargaining, at the time, was intended to establish by consensus a new
“maximum retirement age” for pilots.
The collective
agreement: EXTENTION OF RETIREMENT AGE TO 63 YEARS dated 11 November
2005 recorded the new retirement age and the
terms and conditions of
service.
The evidence, undisputed,
established the fact that Mr. Van Vuuren was expressly included in
the scope and application of the collective
agreement and was treated
from then on as being a beneficiary of the collective agreement.
The submission, that Mr.
Van Vuuren was “automatically retired” on the 5 August
and as of that date “had no entitlement
to any further rights
arising from his employment relationship” is unsustainable.
[46] Novation,
Compromise
.
Mr. Cassim did not press these submissions in
argument before me. In essence, the submissions made is that the
collective agreement
gave rise to novation alternatively compromise.
These submissions, founded on the law of contract and the principles
of
consensus ad idem
and
pacta sunt servanda
, must lead
to the conclusion that the employee gave consent to suffer
discrimination. There is no evidence –none whatsoever-
that Mr.
Van Vuuren gave such consent or authority to his association to
conclude an agreement that was to cause him to suffer
discrimination.
As a matter of fact he was to protest, loud and clear, at every
opportunity to the association and its members
and management.
At any rate and
regardless, it is against the provisions of the Constitution and
Employment Equity Act that embodies our public
policy, to consent to
suffer unfair discrimination on a proscribed ground or to contract
out of the protections afforded in these
laws.
In
Sasfin
(Pty) Ltd v Beukes
,
3
Smalberger JA was heard
to say:
‘
No
court should shrink from the duty of declaring a contract contrary to
public policy when the occasion so demands. The power to
declare
contracts contrary to public policy should, however, be exercised
sparingly and only in the clearest of cases, lest uncertainty
as to
the validity of contracts result from arbitrary and indiscriminate
use of the power. One must be careful not to conclude
that a contract
is contrary to public policy merely because its terms or some of them
offend one’s individual’s sense
of proprietary and
fairness… In grappling with this often difficult problem it
must be borne in mind that public policy
generally favours the utmost
freedom of contract, and requires that he commercial transactions
should not be unduly trammelled
by restrictions on that freedom. A
further relevant, and not unimportant, consideration is that public
policy should properly take
into account the doing of simple justice
between man and man.’
[47]
Collective
Agreement
. In the main, the employer sought to justify the
discrimination on the ground that it was the product of a collective
agreement
and for that reason, was fair. And this is the nub of the
matter: can a collective agreement be used to justify unfair
discrimination?
[48]
This question was considered in
Larbi-Odam
and Others v Member of the Executive Council for education
(North-West Province) and Another
.
4
Per Mokgoro J
‘
Where
the purpose and effect of an agreed provision is to discriminate
unfairly against a minority, it’s origin in negotiated
agreement will not in itself provide grounds for justification.
Resolution by majority is the basis of all legislation in a
democracy,
yet it to is subject to constitutional challenge where it
discriminates unfairly against vulnerable groups.’
[49] The reference to an
“agreed provision” was a reference to a regulation that
was negotiated and agreed upon in the
Education Labour Relations
Council. This judgment is clear authority for the fact that
justification cannot be founded on a collective
agreement or any
agreement for that matter.
[50]
In
Barkhizen
v Napier,
5
it was held that public
policy had to be determined with reference to the Constitution, so
that a contractual term that violated
the Constitution was by
definition contrary to public policy and therefore unenforceable.
[51] I need mention here
that no sooner the ink had dried on the collective agreement dated 11
November 2005, disputes arose about
amongst other things, the binding
effect of the agreement on the employer and the interpretation and
application of the agreement.
A dispute in this regard was declared
by SAAPA and referred for conciliation.
[52] Subsequently, SAA
was to declare its position that the collective agreement dated 11
November 2005 was not binding on it as
the representatives that
represented the employer were not mandated to enter into the
contract.
[53] On the 2 August
2007, Mr. Bhabhalazi Bulunga, General Manager Human Resources wrote a
letter to Captain John Harty, Chief Negotiator
SAAPA in the following
terms:
‘
Re:
EXTENSION OF RETIREMENT AGE
Further
to our discussions concerning the extension of the retirement age of
pilots, please take notice that the Board has resolved
to extend the
retirement age of SAA employees to the age of 63 (sixty three) years.
Accordingly,
SAA has notified the relevant pension/retirement fund schemes that
the retirement age of pilots is 63 (sixty three)
years.
Please
take notice further that SAA herewith gives notice that the
memorandum of understanding dated 11 November 2005, will be of
no
force or effect as of the 3 September 2007.’
[54] The employer
unilaterally terminated the agreement. In the circumstances, reliance
on the agreement as justification for discrimination,
may well be
misplaced as the employer seemingly did not consider itself bound by
the agreement
ab initio
and at any rate unilaterally
terminated it.
[55] A collective
agreement is subject to the Constitution and the Employment Equity
Act and is not exempt from its provisions.
Parties may not contract
out of the fundamental rights and protections set out in the Bill of
Rights. This is all the more so as
a collective agreement may acquire
the status of subordinate legislation. In this regard the test set
out by Goldstone J in
Harksen v Lane
is relevant.
[56] The terms of the
agreement were discriminatory and manifestly unfair. It served no
legitimate purpose. Its effects were to
cause for the employee to
suffer reduction in remuneration and other detriment. He suffered
this consequence for no other reason
except on the ground of his age.
[57] This is not a claim
for equal pay for equal work. Hence, the need for a third party
comparator is irrelevant. In this case,
the past and present
treatment of the employee presents the comparison if any is required
at all.
Conclusion:
Discrimination
[58] I am satisfied
having to the facts of this matter that the employer differentiated
the employee from others; the differentiation
was on the ground of
his age, a proscribed ground. This constituted discrimination in
terms of the Employment Equity Act. The employer
failed to advance
any justification for the discrimination. The discrimination was in
the circumstances, unfair.
[59] The employee
quantified his loss suffered and a Quantum of Claim was prepared and
submitted to Counsel for the Respondent.
There was no objection to
the quantum claimed.
[60] I have taken note of
the fact that SAA is a state owned enterprise, that it cancelled the
collective agreement and brought
an end to the discrimination and
that by resolution of the board, increased the retirement age.
However, the Applicant was made
to suffer unfair discrimination on a
proscribed ground, that the employer by discriminating thus sought to
obtain an economic benefit,
at the expense of the Applicant at time
when he was most vulnerable on account of the fact he was at the end
of his working life.
He chose not to suffer the discrimination; he
raised the matter with the recognised union and brought it to the
personal attention
of the Chief Executive Officer who, seemingly,
ignored his appeal for relief, which gave rise to this suit without
unreasonable
delay. Equality, having regard to our past, is a most
cherished value and it is behoves us all to stand guard and defend
any violation
of it. The fact that a state owned enterprise committed
the violation and sought to justify it betrays callousness. This
suit,
as the record reveals, was hard fought, that was to cause the
delay in the hearing of the matter and rise in the burden of cost.
I
have taken these factors into account in the order made.
Order
[61] In the
circumstances, I make the following order:
61.1. The Respondent
discriminated unfairly against the Applicant on the basis of his age;
61.2. The Respondent is
ordered to pay damages to the Applicant the following amounts being
the remuneration he would have earned:
1. Period: 1 September
2005 to 30 May 2006: The sum of R 225 885,66 together with interest
thereon calculated at the rate of 15,5%
as from 1.9.2005
2. Period: 1 June 2006 to
30 May 2007: the sum of R 344 850,00 together with interest there on
calculated at the rate of 15, 5%
as from 1 June 2006
3. Period: 1 June 2007 to
2 September 2007: the sum of R 88 810,26 together with interest there
on calculated at the rate of 15,
5% as from 1 June 2006
4. Back Pay: Back pay in
the sum of R71, 976,34 together with interest thereon calculated at
the rate of 15,5% together with interest
thereon as from 31.10.2006.
5. Special Leave and 13
th
Cheque Payment: Re [31.10.2006]: The sum of R 30 507,65 being in
respect of special leave, bonus and 13
th
cheque difference
in pay, together with interest thereon calculated at the rate of
15,5% as from the 31.10.2006
6. Service Bonus 13
th
Cheque: Re [30-4-2006]: The sum of R25 167,50 together with interest
calculated at the rate of 15,5% as from 30.4.2006
7. Service Bonus 13
th
Cheque: Re [30-4-2007]: The sum of R30 371,56 together with interest
thereon calculated at 15,5% as from 30.4.2007
61.3. The respondent is
order to pay the Applicant compensation in the sum equivalent to one
(1) year remuneration calculated on
the rate of pay applicable for
his last year of service.
61.4. The aforesaid
amounts are to be paid within 14 days of this order.
61.5. Cost of suit
including the cost of employing two Counsel.
______________
SHAIK AJ
Acting Judge of the
Labour Court
Arbitration award
[62] It is common cause
that the employee’s leave pay in the sum of R330 000,00 which
should have been paid to him at the
end of his employment in August
2008, was not paid to him and that that money was utilised to pay his
remuneration for the period
1 September 2005 to 9 November 2005.
[63] It is contended by
the employee that “the forced leave taking” constitutes
an unfair labour practice and the relief
sought is the reinstatement
of the accumulated leave that was at the relevant time to his credit.
In substance, the complaint concerns
conduct of the employer that is
unfair with regard to a “benefit”.
[64] An employee, who
complains of an unfair labour practice, with regard to benefits, is
required to prove firstly, that which
is claimed is a “benefit”
and secondly, conduct unfair relating thereto. The relevant provision
is
section 186
(2) (a) of the
Labour Relations Act 66 of 1995
.
[65] The appropriation of
the leave is as a result of an executive instruction issued by Mr.
Gavin Schmittdiel on the 8 September
2005 to Elize Smit. He cast his
instruction thus:
‘
Please
re-instate Deon Van Vuuren and discuss with the IT department as to
how the tax directive is to be reversed. At the same
time utilize
Deon’s leave for pay purposes until the final agreement has
been signed.’
[66] The employee was not
consulted on this measure, it was a unilateral act. The employee
discovered the appropriation some time
later and per chance.
Mr. Cassim conceded that
the appropriation was unfair and even unlawful. However, he submitted
that this conduct did not constitute
an “unfair labour
practice” as defined in the Act.
[67]
I was referred to the dictum in
Gaylard
v Telkom SA Ltd
6
wherein it was held that
leave pay is not a “benefit”. And in the result, the
claim of “unfair labour practice”
must be dismissed.
[68] I do not agree.
Leave, that is to say the authorised absence from work, is a
“benefit” but Leave Pay is not. In
Gaylard,
mentioned above, the employee claimed “leave pay” that is
not the claim made in this matter.
[69] The complaint of the
employee is that he was forced to take leave. He did not request it.
At the time, he was in employment,
and able and willing to work. And
in fact, he testified, he sought to work.
[70] The employer, for
reasons within its peculiar knowledge, requested that he stay at home
and be on stand-by. In this way, 71
days or thereabout came to pass.
[71] The employee was of
the belief that whilst on this lay-off, he was being remunerated in
the ordinary manner. However, this
was not so. The employer, without
his consent, had debited his leave account and so reduced the number
of days that was to his
credit.
[72] Whilst it appears
that he claims for “leave pay” that in reality is not the
claim. The claim is that it was unfair,
in the circumstances, for the
employer to place the employee on leave.
[73] As the employer
adduced no evidence to the contrary, there is nothing to gainsay the
testimony of the employee.
[74] I consider the
conduct of the employer, in forcing the employee to go on leave, to
constitute an unfair labour practice.
Award
(a) The Respondent is to
pay the Applicant the sum equivalent to 71 days calculated on his
daily rate of pay which applied on his
last day of service.
(b) The aforesaid sum
shall bear interest at the rate of 15,5% calculated from the last day
of service to date of payment.
_______________
SHAIK AJ
Appearances:
For the Applicant:
Advocates R. G. L. Stelzner SC with him S. Harvey instructed by De
Klerk & Van Gend
For the Respondent:
Advocates N.Cassim SC with him F.Boda instructed by Deneys Reitz Inc
1
1997
11 BCLR 1489
(CC).
2
[2006]
6 BLLR 558
(LC).
3
1989
(1) SA 1
(A) at 9B-G.
4
[1997] ZACC 16
;
1998
(1) SA 745
(CC) at para 28.
5
[2007] ZACC 5
;
2007
(5) SA 323
(CC) at para 29.
6
[1998]
9 BLLR 942
(LC) at para 21.