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[2015] ZALCPE 70
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South African Municipal Workers Union and Another v Nelson Mandela Bay Municipality (P483/11) [2015] ZALCPE 70; (2016) 37 ILJ 1203 (LC); [2016] 2 BLLR 202 (LC) (24 November 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
[HELD
AT PORT ELIZABETH]
CASE NO: P483/11
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
FIRST APPLICANT
NOKUTHULA
TETYANA
SECOND
APPLICANT
NELSON MANDELA BAY
MUNICIPALITY
FIRST
RESPONDENT
Dates of hearing:17-18 August 2015
Date of Judgment: 24 November 2015
JUDGMENT:
Phatshoane
AJ
1.
The
South African Municipal Workers Union (SAMWU) and Ms Nokuthula
Tetyana, the first and second applicants, launched these proceedings
in terms of s 10(6)(a)read with ss 1 and 6(1) of the Employment
Equity Act, 55 of 1998 (EEA). They claim that the respondent, Nelson
Mandela Bay Municipality (the Municipality), unfairly discriminated
against Ms Tetyana on the basis of gender in that she is being
paid
less remuneration for performing the same or similar work as her
fellow male assistant directors.
2.
The
Human Settlement Directorate’s structure of the Municipality
makes provision for the employment of five assistant directors.
According to Mr MvuleniMapu, a director in Human Settlement, the
positions of all the assistant directors were on grade 15 when
the
directorate was established.
3.
The
Municipality advertised the position of Assistant Director: Planning
and Co-ordination in the Human Settlement Directorate around
January
2010 at grade 15.Ms Tetyana successfully applied for the position.
She received an offer of employment on 04 October 2010
and accepted
it the next day. She commenced her duties on 01 November 2010. She
was the only female assistant director appointed
in the directorate
while the remaining four assistant directors, Messrs David Toyise,
Sandisile Mahashe, Tony Anthony and Rudi
April were male. Save for Mr
Toyise, who was employed at grade 16, these assistant directors,
including Ms Tetyana, were appointed
at grade 15.Mr Mahashe and
Anthony were appointed at the same time as Ms Tetyana.
4.
Ms
Tetyana’s pertinent complaint is that she is remunerated at a
lower salary notch than Mr Mahashe and Anthony. Referring
to the
salary advices,she intimated that her basic salary as at 25 November
2010 was R26 766.00 per month whereas Mr Mahashe
and Anthony
earned R27 435.00 each
[1]
.
As for Mr Toyise, the grievance by Ms Tetyanais that he is on grade
16 and remunerated at that same grade while she is on grade
15.She
excluded Mr Rudi April as a comparator because he was appointed long
before her and therefore did not probehis salary.
5.
The
assistant directors’ grade is reflected on their job
description as level 15. Ms Tenyana testified that all five assistant
directors in the Human Settlement Directorate shared the same
responsibilities regard being had to their job
description
[2]
.However, she
intimated that she was given additional responsibilities because of
her knowledge of human resources, financial management,
performance
management and other skills. She also took charge of the
administration of the whole section whereas the other assistant
directors were not given additional tasks. Mr Mapu and Mr Mahashe
confirmed that the assistant directors had an identical job
description which applied to all of them albeit Mr Mahashe added that
others performed additional work.
6.
Ms
Tetyana and the other four assistant directors were reporting to Mr
Mapu. Prior to Mahashe’s appointment as an assistant
director,
he was employed by the Municipality as a project manager on grade 14.
He received the top notch or maximum salary in
grade 14 salary
range. On his appointment to the assistant director position at
grade 15 Mahashe raised some dissatisfaction
in respect of his salary
in a letter he directed to Mr Mapu dated 29 September 2010.It reads:
“
SUBJECT:
APPOINTMENT
AS ASSISTANT DIRECTOR CONTRACTS MANAGEMENT.
I
accept the above appointment for the position of an Assistant
Director Contracts Management and further want to forward my
appreciation
for your confidence in me in undertaking such duties.
I
also want to highlight the following challenging area with regards to
the package offered and these relate to the following:
I
highlighted during the interviews that this position was advertised
as a grade 15 and during the advertising process, Assistant
Directors
in my directorate were upgraded to grade 16 and I requested that this
anomaly be rectified.
My
present salary is R 26 766.00 which is the top notch of my present
grade (14) and the bottom notch of grade 15 is the same amount
and
the car allowance for grade 15 is R 5 890 per month.
The
above challenge can be depicted underneath as follows:
Present
Salary (Grade 14)
:
R26 766.00
Present
Car Allowance
:
R 8 500.00
Totals
:
R35 266.00
Grade
15 Salary (Bottom Notch)
:
R26 766.00
Plus
2.5 scale progression
:
R 699.00
Grade
15 Car Allowance
:
R 5 890.00
Totals
:
R33 325.00
Grade
14 Totals
:
R35 266.00
Minus
Grade 15 Totals
:
R33 325.00
Totals
:
R 1 941.00
……
The
above calculations reflect very clearly that by being started at the
bottom of the scale I will lose about R 1 941.00 but
if I can be
started at the top of the scale I will benefit an amount of R 377.00
only.
Whilst
the issue of grading for Assistant Directors is being sorted out, I
submit my request that I be started on the top of the
scale so that I
cannot be in a worse off situation.
Trusting
that this receives your consideration.”
7.
Mr
Mahashe testified that he did not receive a response to his letter.
Mr Mapu confirmed receipt thereof and intimated that he forwarded
it
to Executive Director Human settlement. Mr Mapu explained that the
recruitment notification in respect of the filling of posts
for
assistant directors recorded that the post was on grade 16 whereas it
was advertised at grade 15. During the interviews that
were held to
fill these vacancies he had a discussion with the other panellist,
Executive Director Human Settlement and Executive
Director Corporate
services. They agreed that the post will be adjusted to grade 16.
8.
Mr
Mapu directed a letter dated 29 September 2010 to the Executive
Director: Human Settlement headed: “Assistant Director:
Contracts Management Motivation”
[3]
.
Therein he reiterated the aforementioned agreement that was reached
during the interviews. He further recorded that it was communicated
to Corporate Administration that the interview panellists agreed that
the grade be corrected on appointment. He then suggested
that the
positions be elevated to grade 16. He was of the view that the
suggestion will resolve Mr Mahashe’s complaint. In
the
alternative, as a last resort, he proposed that the positions be
placed on the top notch of grade 15 to address the financial
anomaly.
9.
Mr
Mapu conceded that he had no power to change the grading of the posts
but intimated that the two executive directors and he were
s 56
employees
[4]
and could therefore
take a decision that the post be upgraded during the interviews.
10.
Mr
Mapu testified that Mr Anthony, who had been employed by the
Municipality for many years, had a similar complaint as Mr Mahashe.
Mr Anthony also directed a letter dated 05 October 2010 to him to the
effect that the salary he was earning on grade 15 was less
than what
he earned as a project manager. Mr Mapu also forwarded this letter to
the Executive Director Human Settlement. The response
from Corporate
Services to the complaints by the assistant directors was set out in
its letter of 24 November 2014 as follows:
“
The
incumbents in the post of Assistant Director Contract Management and
Assistant Director Planning Coordination, at this stage
may not be
upgraded to 16, as requested, as it is not aligned to Council
policies or procedures. Both posts were “
interim
graded”
,
advertised at Grade 15 as per Municipal Circular 3 of 2010. However,
the post will be subjected to job evaluation in the
TASK
Maintenance Phase.
Please
note that your recommendation to “consider the pay parity
dispensation” for upgrading the incumbents in these
post,
failing your request above, remains your prerogative to submit with
the portfolio of evidence and the said request to the
Pay Parity Task
Team for consideration.
The
Pay Parity Task Team, in its meeting with you, set out the terms for
qualifying incumbents. The Pay Parity agreement and Terms
of
Reference published ….set out the guidelines.
I
trust this resolves the matter”.
11.
Mr
Mapu responded to the aforesaid correspondence on 26 November 2010.
He regurgitated the agreement made by the executive directors
during
the interviews referred to earlier. He further intimated that the
incumbents had been on grade 14 as project managers and
received
higher allowances than the assistant directors. Their appointments as
assistant directors, he pointed out, had no monitory
value for them
and were losing out while they carried more responsibilities. Mr
Mapuwas informed that the matter was receiving
attention but did not
receive any feedback.
12.
On
04 February 2011Ms Tetyanaand Mr Mahashe filed a grievance
[5]
:
Unfair Labour Practice
viz
inequity in pay. They set out therein that their positions were
graded at 15 while the other assistant directors were on grade
16.
The desired outcome of their grievance was that they be remunerated
and placed at grade 16 retrospectively from date of their
appointment. Mr Mapu, as their immediate supervisor, dealt with the
grievance. At step one of this grievance he recorded
the
following:
“
No
need for this dispute because one of the assistant directors is on
grade 16 whilst the job description is the same. I have made
previous(sic)submissions on this matter to support the upgrading”.
13.
When
the domestic grievance procedures proved unsuccessful Mr Mahashe, on
one hand, referred an unfair labour practice dispute to
the South
African Local Government Bargaining Council (SALGBC) for
determination. On 14 September 2011 the SALBC found that it
lacked
jurisdiction to entertain his dispute. On the other hand, Ms Tetyana
referred “the unfair discrimination dispute concerning
pay/conditions” to the Commission for Conciliation Mediation
and Arbitration (CCMA). Following an unsuccessful attempt at
conciliation of the dispute by the CCMA she referred her claim to
this Court for adjudication.
14.
A
TASK Agreement was signed on 01 December 2013 by the Municipality and
the Trade Unions. Subsequent to this, in March 2014 Ms Tetyana
was
placed on grade 16; however, at its minimum or commencing salary
notch. Her basic salary was R37 963.00 whereas Mahashe
and
Toyise earned R38 544.00 and R43 555.00, respectively.
15.
Ms
Tetyana testified that there was no rational basis or justification
why she was earning less remuneration than her male counterparts
and
attributed the disparities in the remuneration to discrimination on
the basis of her gender. Mr Mapu did not know why the other
assistant
directors were earning more than Ms Tetyana and ascribed this to
administrative chaos and some measure of differentiation
on the basis
sex. Mr Mahashe does not know why Mr Anthony and he were earning more
than Ms Tetyana. He indecisively attributed
the pay incongruences to
discrimination on basis of sex and intimated that although Tetyana
and he had the same grievance, the
latter was worse off in comparison
to him.
16.
At
the commencement of the trial the Municipality reserved its right to
pursue its plea that this Court lacked jurisdiction to entertain
the
claim. The trial proceeded in the normal course. At the end of the
applicants’ case the Municipality applied that it
be absolved
from the instance. Having argued the application the Municipality
broached its point on jurisdiction. It is appropriate
to dispose of
the point as it may be dispositive of all the issues in contention
insofar as they are before this Court for determination.
It is always
preferable to deal with a point
in
limine
at inception stage. Reserving their right, as the Municipality did,
may create uncertainty and lead to unnecessary time wastage
if the
objection is eventually upheld.
17.
Mr
Grogan, for the Municipality, argued that as far as Ms Tetyana claims
that her post should have been elevated to grade 16 she
ought to have
referred her dispute to the SALGBC under the rubric of unfair labour
practice relating to the “provision of
benefits”. Counsel
contended that insofar as her dispute concerns her notch within grade
15 she has no remedy in this Court
or any other statutory forum as
this is an interest dispute the remedy of which lies in negotiation
and or industrial action. As
for her dissatisfaction that she be
placed at grade 16 on the basis of an agreement or a contractual
undertaking her dispute resorted
under the
Basic Conditions of
Employment Act, 75 of 1997
.
18.
Mr
Voultsos, for the applicants, pressed that the conduct complained of
constitutes unfair discrimination. He contended that the
mere fact
that the same facts may give rise to a collateral complaint in the
form of an unfair labour practice does not deprive
this Court of
jurisdiction. Much will depend on the manner in which the employee
cast the dispute in the pleadings, the argument
went.In support of
his argument counsel relied on
SA
Maritime Safety Authority v McKenzie
(2010)
31 ILJ 529 (SCA) at 535 para 7 where the Court held:
“
..The
question in such cases is whether the court has jurisdiction over the
pleaded claim, and not whether it has jurisdiction over
some other
claim that has not been pleaded, but could possibly arise from the
same facts.”
19.
In
my view the contention that this Court has no jurisdiction to
determine the applicants’ claim is unsustainable. The following
dictum in
Mangena&
others v Fila SA (Pty) Ltd & others
(2010) 31 ILJ 662 (LC) 668-669 is particularly apposite:
“
[5]
The first question that arises is whether equal pay claims, and in
particular claims for equal pay for work of equal value,
are
contemplated by the EEA. Unlike equality legislation in many other
jurisdictions, the EEA does not specifically regulate equal
pay
claims. Section 6 of the Act prohibits unfair discrimination in
any employment policy or practice, on any of the grounds
listed in s
6(1) or on any analogous ground, if an applicant is able to show that
the ground is based on attributes or characteristics
that have the
potential to impair the fundamental human dignity of persons or to
affect them in a comparably serious manner. (See
Harksen
v Lane NO & others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at 325A.) 'Employment policy or practice' is
defined by s 1 of the EEA to include remuneration, employment
benefits and terms
and conditions of employment.
To
pay an employee less for performing the same or similar work on a
listed or an analogous ground clearly constitutes less favourable
treatment on a prohibited ground, and any claim for equal pay for
work that is the same or similar falls to be determined in terms
of
the EEA.
Similarly, although the EEA makes no specific mention of claims of
equal pay for work of equal value, the terms of the prohibition
against unfair discrimination established by s 6 are sufficiently
broad to incorporate claims of this nature. In relation to claims
where the differential that is asserted by the claimant is a
difference in sex, the ILO Equal Remuneration Convention 1951 (No
100) situates the comparison to be made at the level of the value of
work, and obliges ratifying member states to give effect to
the
principle of equal remuneration for men and women workers for work of
equal value. To this extent, this court is required to
interpret the
EEA in compliance with South Africa's public international law
obligations…
In
Louw v Golden Arrow Bus Services (Pty) Ltd
(2000) 21 ILJ 188
(LC), Landman J said the following at 196F:
'In
other words, it is not an unfair labour practice to pay different
wages for equal work or for work of equal value. It is however
an
unfair labour practice to pay different wages for equal work or work
of equal value if the reason or motive, being the cause
for so doing,
is direct or indirect discrimination on arbitrary grounds or the
listed grounds, eg race or ethnic origin.' (My emphasis)
20.
The
principles lucidly set out in
Mangena
& others v Fila SA
(supra) are on all fours applicable in this matter. I align myself
with the views expressed therein. As dominus litis an applicant
determines his/her cause of action or relief sought or the forum that
has jurisdiction. I therefore conclude that this Court has
jurisdiction to determine the dispute.
21.
The
key issues arising for consideration as foreshadowed in the
applicants’ statement of claim are as follows:
“
4.1
Whether
or not the Respondent [the Municipality], in failing to remunerate
the Second Applicant on the same level as her fellow
male assistant
director (i.e. at grade 16 level), Toyise, is discriminating (within
the meaning of sections 1 and 6(1) of the EEA)
against the Second
Applicant, whether directly or indirectly, on account of her gender.
In this particular regard, the Applicants
plead that the Respondent,
contrary to the relevant statutory provisions as more fully set out
above, is discriminating against
the Second Applicant by improperly
and unfairly failing to remunerate her at the same level as Toyise.
4.2
Whether or not the Respondent, in failing to remunerate the Second
Applicant
on the same level as her fellow male Assistant Directors,
Mahashe and Anthony, is discriminating (within the meaning of
sections
1 and 6(1) of the EEA) against the Second Applicant, whether
directly or indirectly, on account of her gender. In this particular
regard, the Applicants plead that the Respondent, contrary to the
relevant statutory provisions as more fully set out above, is
discriminating against the Second Applicant by improperly and
unfairly failing to remunerate her at the same level as Mahashe and
Anthony.”
22.
The
Court reaffirmed the correct approach to absolution from the instance
in
De
Klerk v ABSA Bank Ltd And Others
2003 (4) SA 315
(SCA) In 323 para 10 as follows:
“
[10]
The correct approach to an absolution application is conveniently set
out by Harms JA
in
Gordon Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA) at 92E - 93A:
'[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's case was formulated in
Claude Neon Lights (SA) Ltd v
Daniel
1976 (4) SA 403
(A) at 409G - H in these terms:
''.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173; Ruto Flour Mills (Pty) Ltd v
Adelson (2)
1958 (4) SA 307
(T).)''
This
implies that a plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements
of the
claim - to survive absolution because without such evidence no court
could find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2).
As far as inferences from the evidence are concerned, the inference
relied
upon by the plaintiff must be a reasonable one, not the only
reasonable one (Schmidt at 93). The test has from time to time been
formulated in different terms, especially it has been said that the
court must consider whether there is ''evidence upon which
a
reasonable man might find for the plaintiff'' (Gascoyne (loccit)) - a
test which had its origin in jury trials when the ''reasonable
man''
was a reasonable member of the jury (Ruto Flour Mills). Such a
formulation tends to cloud the issue. The court ought not
to be
concerned with what someone else might think; it should rather be
concerned with its own judgment and not that of another
''reasonable'' person or court. Having said this, absolution at the
end of a plaintiff's case, in the ordinary course of events,
will
nevertheless be granted sparingly but when the occasion arises, a
court should order it in the interests of justice.'
23.
Section
6 of the Employment Equity Amendment Act, 47 of 2013, which commenced
on 14 January 2014 substituted s 11 of EEA and revised
the onus of
proof in discrimination cases. Section 11 as amended provides:
“
11
Burden of proof:
(1)
If unfair discrimination is alleged on a ground listed in section 6
(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 and not unfair, or is otherwise justifiable.
(2)
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.
24.
Prior
to its amendment s 11 of EEA provided that whenever unfair
discrimination is alleged in terms of the EEA, the employer, against
whom the allegation is made, must establish that the discrimination
is fair. On the basis of this Court’s decision in
Bandat
v De Kock & another
(2015) 36 ILJ 979 (LC)
[6]
the
parties accepted that the amendment to the EEA, was not
retrospective.
25.
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more of the
grounds listed in s 6(1) or grounds akin thereto.
[7]
Section 6(4) provides that a difference in the terms and conditions
of employment between employees of the same employer performing
the
same or substantially the same work or work of equal value that is
directly or indirectly based on any one or more of the grounds
listed
in subsection (1), is unfair discrimination. The approach that has
been followed since the advent of our constitutional
era was laid
down by the Court in
Harksen
v Lane NO & Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at 321-322para 46 as follows:
“
[46]
The determination as to whether differentiation amounts to unfair
discrimination under s 8(2) requires a two stage analysis.
Firstly,
the question arises whether the differentiation amounts to
'discrimination' and, if it does, whether, secondly, it amounts
to
'unfair discrimination'. It is as well to keep these two stages of
the enquiry separate. That there can be instances of discrimination
which do not amount to unfair discrimination is evident from the fact
that even in cases of discrimination on the grounds specified
in s
8(2), which by virtue of s 8(4) are presumed to constitute unfair
discrimination, it is possible to rebut the presumption
and establish
that the discrimination is not unfair.”
See
also
SA
Airways (Pty) Ltd v Jansen van Vuuren& another
(2014) 35 ILJ 2774 (LAC) 2789 para 36.
26.
In
this case the disparate treatment would occur if it is established
that the employer treated the complaining employee less favourably
on
the basis of sex or gender by placing her on a lower remuneration
scale for performing the same or similar work as her male
comparators. It was not controverted that the assistant directors in
the Human Settlement Directorate are performing the same or
similar
work, some with added responsibilities. It was also not in dispute
that there are salary disparities amongst these directors.
What
remains for the employee to demonstrate is that there is a
causal
nexus
between the differentiation on the basis of her gender or sex and the
treatment accorded to her in respect of the grading of her
post and
the concomitant remuneration. In other words, that being female was a
sine
qua non
for
the less remuneration she earned. It has been held in a number of
decisions in this Court that a mere say so of discrimination
is not
adequate for the onus to shift to the employer to prove that the
discrimination was fair
[8]
. In
Mangena&
others v Fila SA (Pty) Ltd & others
(supra) at 669-670the Court pronounced:
“
[7]
This court has repeatedly made it clear that it is not sufficient for
a claimant to point to a differential in remuneration
and claim
baldly that the difference may be ascribed to race. In
Louw
v Golden Arrow
[(2000)
21 ILJ 188 (LC)] Landman J stated at 197B:
'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 of, 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]
that [of] Mr Beneke's salary because
of his race '.
This
formulation places a significant burden on an applicant in an equal
pay claim.
In
Ntai&
others v SA Breweries Ltd (2001) 22 ILJ 214 (LC)
,
the court acknowledged the difficulties facing a claimant in these
circumstances and expressed the view that a claimant was required
only to establish a prima facie case of discrimination, calling on
the alleged perpetrator then to justify its actions. But the
court
reaffirmed that a mere allegation of discrimination will not suffice
to establish a prima facie case (at 218F, referring
to
Transport
& General Workers Union & another v Bayete Security Holdings
(1999) 20 ILJ 1117 (LC)).”(My emphasis)
27.
To
sum up, Ms Tetyana’s complaint is essentially twofold. Firstly,
she contended that she was remunerated at grade 15 whereas
Mr Toyise
was remunerated at grade 16. Secondly, her discontentment is that her
fellow male assistant directors in the Human Settlement
Directorate
are remunerated at a higher notch than hers.
28.
It
was not gainsaid by the applicants that the posts of assistant
directors are on grade14 to 16. In its statement of response the
Municipality state that Mr Toyise’s post was incorrectly graded
at level 16 and that the process to correct the error was
afoot. Mr
Mapu could not comment that Mr Toyise was incorrectly graded and
intimated that the dispute was still pending. Ms Tetyana
conceded
that there was an attempt to reverse Toyise’s grade. On the
view I take of this matter whether Mr Toyise was correctly
or
incorrectly graded is not decisive of the issues and how the
Municipality seeks to achieve the reversal after five years is
another matter for another forum.
29.
Ms
Tetyana’s claim of differential treatment on account of her
gender with regard to the grading of her post from grade 15
to grade
16 like that of Mr Toyise cannot simply pass muster because her other
male comparators, Messrs Mahashe and Anthony, were
also on grade15.
To this end on 04 February 2011 she jointly filed a grievance with
Mahashe complaining of their grade and requesting
that it be elevated
to grade 16.If she learned that she was discriminated against in
January 2011, as she says, it is inconceivable
that when she filed
her grievance she took no issue on discrimination.
30.
The
similarities between Ms Tetyana’s dispute and the complaint
that was launched by Mr Mahashe at the SALGBC are quite remarkable.
In summarising the nature of Mr Mahashe’s dispute the SALGBC
commissioner notes:
“
The
applicant required that the benefits/salary of the applicant be
adjusted to the level of his colleagues and be upgraded from
grade 15
to grade 16.
[9]
”
31.
Under
these circumstances the employer’s conduct in refusing to
remunerate Ms Tetyana at grade 16 can hardly constitute
discrimination
on the basis of sex or gender in an instance where a
similar treatment was accorded to her male colleague, Mr Mahashe.
32.
The
applicants argument that there was an agreement during the interviews
by Mr Mapu and other executive directors to the effect
that the posts
of assistant directors will be graded at 16cannot not avail Ms
Tetyana because her male comparators in the directorate,
save for
Toyise, remained on grade 15. In any event had this agreement been
implement it would have benefited not only Ms Tetyana
but her other
fellow male assistant directors as well.
33.
The
high watermark of Ms Tetyana’s case is that she earned less
remuneration than her male comparators. She could not point
to any
Remuneration Policy that discriminates against employees on the basis
of their gender or sex and neither was her case based
on the
existence of a policy on this score. She intimated that “She
thought that it was traditional” that she earned
less than her
male comparators as women are generally being disadvantaged and paid
less.
34.
It
is common cause that Messrs Anthony and Mahashe had been in the
employ of the Municipality as project managers prior to their
engagement as assistant directors in the Human Settlement Directorate
whereas Ms Tetyana was an external candidate. After Mahashe
and
Anthony’s appointment they complained in writing to Mr Maputhat
their remuneration was less than what they previously
earned and
requested the adjustment of their grades and/or their salary notches.
Mr Mahashe and Mr Mapu could not say that Mr Mahashe
and Mr Anthony
were on higher notches because they were males. It is probable that
they were on a notch higher than Tetyana’s
due to the obvious
financial anomaly. Ordinarily the salary progression of these
employees and that of Ms Tetyana could not have
been the same given
their background in the establishment.
35.
Mention
should be made that Ms Tetyana intimated that if Anthony and Mahashe
were female she would have still complained. Later
on as her evidence
progressed she tried to clarify this by saying that it would depend
on the circumstances. The following remarks
in
Raol
Investments (Pty) Ltd t/a Thekwini Toyota v Madlala
2008
(1) SA 551
(SCA); (2008) 29 ILJ 267 (SCA) at 271 para are
instructive:
Whether
an employer has discriminated against an employee on the grounds of
race (or on any other arbitrary ground) is a question
of fact
(whether the discrimination was unfair is a separate question). Where
the evidence establishes, as it does in this case,
that the employer
treated employees differently on grounds other than race, there is
simply no scope to infer that the employee
was discriminated against
on the grounds of race, because the reason for the disparate
treatment has been established to be something
else. That the
differential treatment was not justified is immaterial to the factual
enquiry as to the reason that it occurred.
In this case the company
said that its disparate treatment of the two employees (Ferreira was
white and the respondent is black)
was because a formal complaint was
lodged by the victim of the assault in one case but not in the other.
Unless that explanation
is rejected as no more than a smokescreen to
conceal a more sinister motive (and in my view there are no proper
grounds for doing
so) there is simply no scope for an inference to be
drawn that conflicts with that explanation.
36.
To
buttress her claim for discrimination Ms Tetyana referred to a
grievance that was filed by Messrs Beatie and Potgiter prior to
Tetyana’s appointment.It so happened that these two assistant
directors, who were employed in the Housing and Land Directorate,
were dissatisfied with the grading of their posts at level 15 and
filed a grievance. Ms Tetyana referred to the outcome of their
grievance dated 05 June 2009 in which it is recorded that: “An
appropriate retention strategy for them as occupiers of a
scare
skills category would be to place them on grade 16”
[10]
.
It is not Ms Tetyana’s case that the two were her comparators.
Clearly Messrs Beatie and Potgieter were not in the same
directorate
as Ms Tetyana and performed different functions. This much she
conceded. Her view that their grades were upgraded with
ease because
they are male is simply not enough to sustain her claim of
discrimination.
37.
I
am not swayed that the difference in gender or sex was a dominant
reason for the differentiation. There are other reasonable inferences
that could be drawn from the facts, including what Mr Mapu and Mr
Mahashe referred to as administrative chaos, which is gender
neutral,
which could be attributed to the disparity. On the whole it cannot
reasonably be inferred that the differentiation in
remuneration was
on the basis of the fact that Ms Tetyana is female. That causal nexus
is absent in this case.In my view, SAMWU
and Ms Tetyana did not
establish the existence of discrimination as contemplated in s 6 of
the EEA.
38.
Although
pleaded, the question of indirect discrimination on the basis of
gender does not arise because no evidence had been tendered
in
support of this claim.I am satisfied that the application for
absolution from the instance should succeed.
39.
That
brings me to the question of costs. Although the Municipality has
achieved substantial success I am not persuaded that it be
awarded
its costs. This is so because the parties are still in an employment
relationship. To my mind, it will not be in accordance
with the
requirements of the law and fairness for costs to follow the success
where the applicants had been in pursuit of a course
aimed at
vindicating an entrenched right not to be unfairly discriminated
against. They should not be mulcted in costs.
In
the result the following order is made:
Order:
1.
The
application by Nelson Mandela Bay Municipality, the respondent, to be
absolved from the instance is granted.
2.
No
order is made as to costs.
_______________________
Phatshoane
AJ
Appearance
for the applicant : AdvJG Grogan
Instructed
by Doreen Mgoduka Attorneys
Appearance
for the first respondent: AdvLVoultsos
Instructed
by Kaplan Blumberg Attorneys
[1]
The salary slips appear at pages 114A, 114B and
114C of the consolidated bundle.
[2]
The job description appears at page 1 of the
consolidated bundle.
[3]
The letter is on page 104 of the consolidated
bundle
[4]
Section 56 of the Municipal Systems Act, 32 of
2000, deals with the appointment of managers directly accountable to
the municipal
managers.
[5]
The grievance is on page 125 of the bundle.
[6]
At 990 para14 of the decision the Court held: “In
casu, there is nothing in the EEA or in the amendment thereof which
indicates
that it must be applied retrospectively. As such, the
presumption that must apply is that it is not retrospective and that
the
existing procedure prior to the amendment must find application.
This presumption can then only be rebutted if there exist particular
considerations of fairness and equity to do so and if there is a
clear intention to be gathered from the statute itself that
it was
intended to apply to even pending proceedings. I can find no
indication in the EEA of any intention that the amendment
applies to
existing and pending proceedings, already in existence prior to the
amendment.”
[7]
The grounds listed in s 6(1) includes: race,
gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin,
colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political
opinion, culture, language,
birth or on any other arbitrary ground
[8]
See
Louw v Golden Arrow
(2000) 21 ILJ 188 (LC);
Aarons v
University of Stellenbosch
(2003) 24
ILJ 1123 (LC) at 1129 para 18;
Nombakuse
v Department of Transport & Public Works: Western Cape
Provincial Government
(2013) 34 ILJ
671 (LC) at 678 para 28
[9]
The outcome of Mahashe’s case at the SALGBC
appears at pages142-146 of the consolidated bundle.
[10]
See page 61 of the consolidated trial bundle.