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[2015] ZALCJHB 379
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Brilliant and Others v Gauteng Gambling Board (JS276/15; JS721/14) [2015] ZALCJHB 379 (12 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 276/15; JS 721/14
In
the matter between:
BRILLIANT
AND 50
OTHERS
Applicants
and
GAUTENG
GAMBLING
BOARD
Respondent
Heard
:
9 October 2015
Delivered
:
12 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
The first to 51
st
applicants have referred a dispute
to this court in terms of the Employment Equity act. They contend
that they have been
unfairly discriminated against and specifically,
that the respondent has failed to compensate them in accordance with
the principle
of equal pay for work of equal value. The respondent
has raised a number of points in
limine
and these are the
subject of the present proceedings.
[2]
The first objection raised by the respondent is one of
lis
pendens
. In this regard, the respondent contends that on 30
September 2014, the applicants referred an alleged unfair labour
practice dispute
to this court under case number JS 721/14. In that
referral, the applicants contend that the respondent has incorrectly
applied
the Paterson grading system and incorrectly applied what is
referred to as the ‘median policy’. The manner in which
the referral was drafted clearly indicates that the dispute is one
concerning an unfair labour practice in relation to the provision
of
a benefit.
[3]
It is patently clear to me from the terms of the referral that this
court has no jurisdiction
to entertain it. The Labour Relations Act
does not empower this court to entertain an unfair labour practice
dispute; indeed, section
157 (5) specifically provides that the court
may not adjudicate an unresolved dispute if the Act requires the
dispute to be resolved
through arbitration. A dispute concerning an
unfair labour practice regarding the provision of benefits, of
course, is a matter
that must be referred to arbitration (see s 191
(5)). I fail to appreciate why the respondent has not raised a
special plea in
response to the referral, but that question will no
doubt be a matter that this court will be obliged to deal with in due
course.
[4]
Although the facts and circumstances giving rise to the present
proceedings and those
under case number JS 721/14 are substantially
the same and involve the same parties and much the same subject
matter, two different
causes of action are pleaded. Assuming that the
referral under case number JS 721/14 is valid (in the sense that the
court has
jurisdiction to entertain it), the questions of law raised
are fundamentally different. The objection of
lis pendens
accordingly cannot succeed.
[5]
Turning next to the point taken in regard to the late referral of the
dispute, the
respondent contends that the referral made in terms of
the Employment Equity Act required that it be referred to the CCMA
within
six months of the applicants becoming aware of the act that
they alleged to constitute unfair discrimination. In their statement
of claim, the applicants aver that as long ago as 2011, a staff
association was formed with the objective of addressing and resolving
issues with management and that during the course of 2012, queries
were raised concerning disparities in remuneration. The respondent
contends that the dispute ought therefore to have been referred
during the course of 2012 and that the referral, made as it was
in
2014, was out of time.
[6]
A claim for equal pay for the same or similar work or work of equal
value, certainly
while the employee concerned remains employed, is
quintessentially what has been referred to as an act that is ongoing.
The Labour
Appeal Court has held (see
SABC Ltd v CCMA
[2010] 3
BLLR 251
(LAC)) that where a dispute concerns not a single act of
discrimination but one that is repeated monthly, the employee may
refer
the dispute any time and need not seek condonation for doing so
more than six months after the discriminatory practice commenced.
In
the present instance, there is accordingly no need for the applicants
to seek condonation for a late referral. However, the
date of the
referral has implications for the nature and extent of the
applicants’ claim, as will appear below.
[7]
The third preliminary point raised by the respondent is an exception.
The respondent
contends that of the 51 applicants before the court,
only five set out facts in the statement a case in regard to alleged
unfair
discrimination. The applicants are clearly employed in
different positions, have different qualifications, experience and
length
of service. The respondent contends that the remaining 46
applicants cannot rely on the factors pleaded in relation to the five
applicants to find a claim of unfair discrimination, given these
differentials.
[8]
Paragraph 5.1 of the statement of case makes clear that to ‘prevent
unnecessary
duplicity’ a number of examples are contained in
the statement of claim. As I have indicated, the document goes on to
describe
the specific circumstances of only five of the applicants.
Each of the five applicants chooses a comparator who is employed on
the same Paterson grade and whom it is alleged is paid a different
salary. However, it is clear that even in respect of the five
applicants whose circumstances are described in the statement of
case, they are not employed in the same work. For example, in
paragraph 6 of the statement of case it is alleged that one Lawrence
Sikoe is employed as an on-site inspector later ‘rotated’
to the position of compliance auditor. His chosen comparator is a
Patrick Mashangoane, who is described as an auditor. It is alleged
that Sikoe and Mashangoane perform the same work but are remunerated
differently. I raise this example only to illustrate that
the
circumstances in which each applicant is employed are very different
and that given the requirement of a chosen comparator
in an equal pay
claim, the basis for the comparison must be made clear in each
individual case.
[9]
It is not sufficient, in my view, as the applicants have done, to
pursue an equal
pay claim without at least disclosing the personal
circumstances of each applicant, his or her post in the organisation,
level
of remuneration, the chosen comparator, the basis of the
comparison and the basis on which any differential is alleged to
constitute
unfair discrimination in the form of a breach of the
principle of equal work for the same or similar work, or work of
equal value.
Of course, it is not incumbent on an applicant to
anticipate and negate every defence that might be available to a
respondent (in
the form of differentials in skill, level of
experience, length of service and the like), but each applicant
should at least identify
his or her chosen comparator and
assert the basis on which any identified differential is alleged to
constitute unfair discrimination.
This is particularly so where, as
in the present case, the applicants rely on discrimination on an
arbitrary ground. The basis
on which they contend that any
differential between them and their chosen comparator is arbitrary
(as opposed to merely different)
ought to be alleged, so as to enable
the respondent to plead to that case.
[10]
To the extent that Mr Thompson in argument submitted that what was
really at issue was the salary
adjustment affecting the applicant’s
monthly salary referred to in paragraph 5.14.4 of the statement of
case and that this
applied to all of the applicants, this is simply
not the case that has been pleaded. On the contrary, the five
applicants record
their circumstances in relation to their chosen
comparator and assert that the discrepancies to which they point are
the result
of discriminatory practices on arbitrary grounds and a
breach of the policy of equal pay for work of equal value. If their
case
had been confined to the discriminatory basis on which the
salary adjustment was effected, they would have said so.
[11]
Further, I understood Mr Thompson to concede during argument that the
relief sought in the statement
of claim, and particularly paragraph
(f), is not competent since it seeks to effect a correction to the
applicant’s remuneration
retrospectively to 1 April 2012. Mr
Thompson did not dispute that the effect of the limitation on
referrals under the Employment
Equity Act had the effect that any
retrospective relief was limited to a period six months prior to the
date of the referral.
[12]
In summary, the exception stands to be upheld and the applicants
afforded time within which to
amend their statement of claim so as to
reflect their personal circumstances, those of their chosen
comparators and the basis on
which they contained that any
differential constitutes unfair discrimination on an arbitrary
ground. Further, the applicants are
required to amend the relief that
they seek in respect of retrospective adjustments to the
remuneration. Given the large number
of applicants, I intend to
afford them a period of 30 calendar days within which to file the
amendment.
[13]
In view of the findings to which I have come, it is not necessary for
me to decide the application
to consolidate matters number JS 276/15
and JS 721/14 that has been filed by the applicants.
I
make the following order:
1.
The applicants are to file an amended statement
of claim within 30 calendar days from the date of this order
2.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant Mr M Thompson
For
the respondent (excipient) Mr P Maserumule