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[2015] ZALCJHB 81
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Mabala v Tiger Foods Brand Limited (J2790/13) [2015] ZALCJHB 81 (3 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
J2790/13
DATE:
03 MARCH 2015
Not
Reportable
In
the matter between:
KLAAS
KGOTONG
MABALA
..............................................................................................
Applicant
And
TIGER
FOODS BRAND
LIMITED
....................................................................................
Respondent
Date
heard: 22 October 2014
Delivered:
3 March 2015
Summary:
Claim under section 77(3) of the BCEA brought on motion
JUDGMENT
RABKIN-NAICKER
J
[1] In this
opposed application, the applicant seeks
inter alia
an order
in the following terms:
1.
Ordering the respondent to pay R747 811.14 to the applicant,
being the amounts of remuneration, directly caused by the
respondent’s underpayment of applicant’s remuneration for
period 1 May 2004 to 30 September 2012.
2.
Directing the respondent to pay interest on the amount due and
payable in terms of this order at the rate referred to in
section 75
of the
Basic Conditions of Employment Act 75 of 1997
, as amended, to
the applicant to whom a payment should have been made.
[3] The applicant
claims the difference between the remuneration he has earned and that
which he should have earned if he had been
paid at the level of the
grade he was appointed on. He brings the application in terms of
section 77
(3) of the BCEA. The applicant avers that during the
period 1 May 2004 to 30 September 2012 he was paid aremuneration
package lower
than that provided for by the company at the grade on
which he was employed. This was a grade CL. However he was paid the
remuneration
package of the lower grade of B upper (grade BU). After
his appointment, he discovered that other employees doing the same
job
as him were being paid at the higher salary scale of CL.
[4] The applicant
sets out a schedule in his affidavit purporting to show the
remuneration per annum of grade CL as opposed to grade
BU from 2004
to 2012, the difference in quantum for the period being an amount of
R747 811.14. The company avers that:
“…
the
Respondent has no knowledge of the policy and/or schedule to which
the Applicant is referring in this paragraph. All employees
who are
employed in the position that the applicant has always been employed,
namely Sales Supervisor have all been employed and
continue to be
employed in job grade B Upper since the year 2005.”
[5] In their
answering papers, the company states that it has a job grading system
in place in terms of which various positions
within the respondent’s
organizational structure are graded to reflect the level of seniority
and responsibility of each
position. The Patterson job grading system
grades a job based on decision-making or freedom to act in a specific
role. It submits
that: “it is possible employees who are in
positions that are the same have been similarly graded would be paid
different
remuneration because of other relevant considerations such
as the performance of the individual and the length of service.”
The company also avers that the job grading which an employee is
employed on is not the sole determining factor of the remuneration
that an employee would be paid.
[6] The company
further avers in its answering papers that it does not have any
formalized pay policy which specifically links specific
job grades
with minimum rates of pay.. It does however
endeavour
to pay employees between the 25
th
and 75
th
percentile based,
inter alia
, on individual skills, number of
years in position, responsibilities and performance.
[7] The company
records that prior to the applicant being appointed to a position of
sales supervisor, the respondent advertised
position of sales
supervisor at its Manna Bakery, and invited interested persons to
apply for that position by no later than 12
March 2004. The position
was specifically mentioned in the advertisement as being that of
sales supervisor. The advert also expressly
stated that the
successful candidate would report to the sales manager and that the
advertised position was graded as a B upper
position. However, the
job grade in the advertisement was altered in handwriting to indicate
that it was a C lower grade position.
This was because, despite the
fact that after the re-evaluation of job grades that had been
undertaken by the respondent, it
was determined that the sales
supervisor position was B upper grade and not C lower grade,
employees had not yet been informed
of this change. It is admitted by
the company that the letter of appointment of the applicant also
reflects the position was graded
as a C lower position.
[8] It would
appear from annexure “MN4” to the answering papers that
respondent’s employees were formally informed
about the
re-grading of posts after 18 July 2005. The re-grading, according to
the company in its letter “… will not
materially affect
the individual and any adjustments will only become effective at the
renewal of their car allowance cycles.”
Employees were given an
opportunity to appeal the re-grading of their posts.
[9] The company’s
case is essentially the following: at all material times the
applicant agreed in writing to the quantum
of remuneration he was
earning from the time of his first appointment. The applicant has not
pleaded any term of his contract that
has been breached by the
company. It contends that the applicant has at all material times
been paid his remuneration in accordance
with the letters of
appointment which expressly set out the applicant’s
remuneration and how it would be adjusted from time
to time. It
submits that if the applicant’s grievance is actually that he
has been paid less than other employees in the
same position, his
remedy does not lie in
section 77(3)
of the BCEA.
[10] The company
argues that the schedule created by the applicant cannot be admitted
in evidence and certainly not in motion proceedings
when there is an
express denial of the alleged “policy and/or schedule”.
It questions why the applicant did not seek
to compel discovery of
such a document and that it is simply improbable that the company
would have a document such as that created
by the applicant that
prescribes fixed rates of pay for all employees employed in a
particular position without any room for differentiation
based on any
ground recognized as valid by law.
Evaluation
[11] The
applicant describes the schedule in his affidavit as “
a
summary of the relevant schedule of the Respondent in respect of the
post of supervisor: sales and its corresponding salary levels
for the
period 2004 to 2012
.”
The company denies that the relevant schedule as
summarised
in the founding affidavit exists as a company policy or schedule.
Given the job
evaluation
exercise that the company undertook on its own version, it is simply
not credible that there is no company document that links
remuneration (i.e. salary bands and increment notches) with graded
posts. In such circumstances, I consider that there exists a
material
dispute of the fact on the papers. If the acceptability or cogency of
evidence stands to be influenced by the manner in
which the evidence
is given or, more generally, by what may eventuate if the evidence is
tested by cross-examination, the truth
cannot be satisfactorily
established on a written exposition of the evidence
[1]
.
[12] This court
has the discretion to decide in such a situation that a dispute
between parties should be heard by means of an action.
[2]
Where an applicant should have foreseen that such disputes of fact
would arise (as in this matter), the court may simply dismiss
the
application. However, I am of the view that it is in the interests of
justice that the matter not be dismissed on this basis.
I therefore
make the following order:
Order:
1. The
application under case number J2790/13 is to be adjudicated as an
action.
2. The parties
are to draft a pre-trial minute using the affidavits filed in this
matter in the stead of a statement of claim and
defence.
3. The pre-trial
minute is to be filed within 20 day of this order.
4. The costs of
this application are to stand over for determination by the trial
court.
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Phungo Attorneys
Respondent:
Edward Nathan Sonnenbergs
[1]
Standard
Bank of SA Ltd V Neugarten and Others
1987 (3) SA 695
(W) 699A
[2]
Room
Hire Co (Pty) Ltd V Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T)