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[2017] ZALCJHB 181
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Malope v Crest Chemicals (Pty) Ltd (JS286/15) [2017] ZALCJHB 181 (20 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JS 286/15
In
the matter between:
MALOPE
KESETSE MATTHEWS
Applicant
And
CREST CHEMICALS (PTY) LTD
Respondent
Heard
on: 16 February 2017
Delivered: 20 February 2017
JUDGMENT
VAN NIEKERK J
[1]
When
this matter was called in the trial roll on 16 February 2014, it was
agreed that the court will determine a number of points
in
limine
raised by the respondent.
[2]
The
applicant claims some R18 million by way of an equal pay claim,
brought under s 6 of the Employment Equity Act (EEA). At the
time he
referred the claim to the CCMA, he had retired from the respondent’s
employ. The papers disclose that the claim was
referred late (i.e.
outside of the time limit prescribed by s10 of the EEA), but that the
CCMA condoned the late referral of the
dispute. A certificate of
outcome was issued on 5 March 2015 reflecting that as at that date,
the dispute concerning alleged unfair
discrimination referred for
conciliation on 6 February 2015 remained unresolved.
[3]
The
applicant retired on 30 May 2014, after having been employed for some
42 years. The applicant’s statement of case is not
a model of
clarity. The comparators identified by the applicant appear to be
managers engaged at the level at which the applicant
was employed
from mid-1998. Further, the EEA came into force only on 9 August
1999, and any equal pay claim brought under the statute
could only
have been competent from that date. That notwithstanding, the
applicant appears to have quantified his claim on the
basis of an
income differential that he contends existed between him and his
comparators as at the date of his retirement, extrapolated
over the
42 years of his employment.
[4]
The
points in
limine
relate first to the applicant’s status as an employee as
defined under the EEA and secondly, to the application of the
Prescription
Act. In relation to the first point, the respondent
contends that at the time he initiated his claim, the applicant was
not an
employee as defined by the EEA and that the court accordingly
has no jurisdiction to entertain his claim.
[5]
The
definition of employee contained in the EEA is similar to that
contained in the Labour Relations Act. The definition expressly
excludes independent contractors, and refers to persons who work for
another person or for the state and who receives, or who is
entitled
to receive, any remuneration or any other person who in any manner
assists in the carrying on conducting the business
of an employer. It
may well be that in a literal sense, a person whose employment is
terminated on account of retirement is not
a person who continues to
work and who receives or remains entitled to receive remuneration.
[6]
A
literal interpretation of the definition, is contended for by the
respondent, is at variance with an interpretation that promotes
constitutional values and in particular, the right to equality in
employment and the right to fair labour practices (see, for example
Wyeth
SA (Pty) Ltd v Mangele
[2003] 7 BLLR 734
(LAC)). It is not in dispute that the applicant was
an employee during the period to which his equal pay claim relates.
The fact
that he was no longer an employee at the time the claim was
referred, in my view, is not fatal. What matters is that he was
employed
by the respondent for the period during which he contends
that other employees, similarly situated, were paid a premium solely
on account of their race. The provisions of s 10 of the EEA sustain
this view. What that section provides is that a party to dispute
concerning chapter 6 may refer the dispute within six months after
the act or omission that allegedly constitutes unfair discrimination.
As I understand the applicant’s claim, it is one that
contemplates an act of ongoing discrimination that terminated only
on
the date of his retirement. I fail to appreciate on what basis the
definition of ‘employee’ in the EEA precludes
him from
referring a claim in which he exercises the right under s6, provided
of course that the claim is made within the applicable
time limit or
any late referral is condoned.
[7]
In
regard to the point concerning the application of the Prescription
Act, the applicant contends that he became aware of his rights
only
after his retirement. This is a factual issue which in my view, is
best determined at trial.
[8]
For
the above reasons therefore, the first of the respondents points in
limine
stands to be dismissed; the second is to be determined at a later
stage.
[9]
I
cannot ignore, for present purposes, the quantification of the
applicant’s claim. This ought properly to have been the subject
of an exception but in the absence of an exception or other point in
limine
and in an effort to avoid what may well lead to a postponement of the
trial on this basis, it seems to me that the applicant ought
properly
to quantify his claim and file an amended statement of claim
reflecting that quantification. I did not understand Mr Kubayi,
who
appeared for the applicant, to dispute the need to effect an
amendment in these circumstances. It seems fair to me to permit
him
period of 14 days within which to file an amended statement of case.
I make the following order.
1.
The
respondent’s point in
limine
to the effect that the court has no jurisdiction since the applicant
is not an employee as defined by the EEA is dismissed.
2.
The
respondent’s point in
limine
regarding the application of the Prescription Act is to be determined
by the trial court.
3.
The
applicant is ordered to file an amended statement of claim within 14
days of the date of this order.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Mr Noveni Kubayi, Noveni Eddy Kubayi Incoporated
RESPONDENT:
Mr David Woodhouse, Tabacks Inc