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[2017] ZALCCT 18
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National Union of Mine Workers and Others v Eskom Holdings SOC Ltd (C1078/15) [2017] ZALCCT 18 (21 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
Case
no: c1078/15
In the
matter between:
NATIONAL
UNION OF MINE WORKERS
First Applicant
MZUKISI
MANDABA & 3 OTHERS
Second to Fifth Applicants
and
ESKOM
HOLDINGS SOC LTD
Respondent
Heard
:
6-9 March 2017
Delivered
:
21 April 2017
JUDGMENT
RABKIN-NAICKER
J
[1] This
matter came to trial on the 6 March 2016. At the close of the
applicant’s case, the respondent applied for absolution
from
the instance.
[2] The
legal issues arising from the material facts as recorded in the
applicants’ amended statement of case filed on the
4 March
read as follows:
“
LEGAL
ISSUES
42.
Section 6 of the Employment Equity Act No 55 of 1998 (as amended)
(“the EEA”) prohibits unfair discrimination.
43. As
contemplated in section 6(4) of the EEA, there is a difference in
terms and conditions of employment between (a) on the one
hand second
and third applicants and fourth and fifth applicants and the Senior
Advisors. This despite the fact that all these
employees perform
identical, the same or substantially the same work.
44. There
is no rational basis for the differentiation.
45.
Accordingly the respondent is unfairly discriminating against fourth
and fifth applicants by subjecting them to inferior and
different
terms and conditions of employment than the terms and conditions
applicable to second and third applicants who are employed
as Quality
Assurance Advisors.
46. The
respondent is also unfairly discriminating against second to fifth
applicants by subjecting them to inferior and different
terms and
conditions of employment than the terms and conditions applicable to
Senior Advisors Quality Assurance.
47. The
discrimination is direct based on an arbitrary ground being TASK
grading which is not a good and compelling reason to differentiate
between the employees. The basis of the differentiation is not
rational or objectively justifiable.
48. The
respondent’s conduct in subjecting the applicants to different
and inferior terms and conditions of employment than
those applicable
to Senior Advisors’ Quality Assurance who are doing work of
equal value which is identical, the same or
substantially the same is
discriminatory, not rational, unjustifiable and unfair.
Alternatively
49. The
difference in terms and conditions of employment is disproportionate
to the difference (if any) in the jobs.
49A. The
respondent has treated the applicants in an unfair and inconsistent
manner as regards career progression compared to how
it has treated
the current G15 comparators.”
[3] It is
necessary to remind ourselves of certain salient provisions of the
Employment Equity Act, 1998
as amended.
Section 6
of the EEA reads as
follows:
“
6
Prohibition of unfair discrimination
(1) 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, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or on
any other
arbitrary ground.
(2) It is
not unfair discrimination to-
(a)
take affirmative action measures consistent with the purpose of this
Act; or
(b)
distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job.
(3)
Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1).
(4) A
difference in 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.
(5) The
Minister, after consultation with the Commission, may prescribe the
criteria and prescribe the methodology for assessing
work of equal
value contemplated in subsection (4). (my emphasis)
[4]
Section 11 of the EEA 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.” (my emphasis)
[5] It is
common cause that applicants’ main claim in this matter was
that of unfair discrimination on an arbitrary ground,
and that ground
was pleaded as the TASK system. The applicants did not testify about
the nature or application of the TASK system
or call an expert
witness to testify as to its functions. In fact, in answer to the
application for absolution, the applicants
conceded that the TASK
system is not an arbitrary ground and is in fact a perfectly
acceptable tool for determining the value or
worth of a job. They
stated that they will seek the Court’s leave to amend their
papers.
[6] At
the hearing of the application for absolution no application for
amendment was before court. It was subsequently filed. I
am therefore
not concerned with same in this ruling.
[7] It
was submitted that even should this court grant absolution in respect
of Applicants’ main claim, the alternative claim
contained in
Paragraph 49 of the amended statement of claim has been prima facie
established in evidence. That paragraph bears
repeating:
“
49.
The difference in terms and conditions of employment is
disproportionate to the difference (if any) in the jobs.
49A. The
respondent has treated the applicants in an unfair and inconsistent
manner as regards career progression compared to how
it has treated
the current G15 comparators.”
[8]
Applicants submit that even if absolution is granted on the grounds
that the work is not the same, the alternative claim remains.
Reference is made to the Regulations under the EEA in that a
differentiation in terms and conditions of employment will be fair
and rational if it is applied in a proportionate manner. These
Regulations were published to prescribe the criteria and methodology
for assessing work of equal value contemplated in section 6(4) of the
Act.
[1]
In essence both the main claim and the alternative claim in the
matter are founded on a cause of action in terms of section 6 of
the
EEA. A ground contemplated in section 6(1) of that Act, whether
listed or arbitrary, has to be adduced.
[9] In
South African Local
Authorities Pension Fund v Msunduzi Municipality
[2]
the Supreme Court of Appeal re- stated the law on absolution as
follows:
“
The
test for granting absolution from the instance at the end of a
plaintiff's case is set out in Claude Neon Lights (SA) Ltd v
Daniel
1976 (4) SA 403
(A) at 409G – H where Miller AJA
said:
'
(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 the
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 or ought to) find for the plaintiff.'
In Gordon
Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88
(SCA) ([2000]
4 All SA 241)
Harms JA repeated the test set out in
Claude Neon Lights and added (para 2):
'This
[the passage quoted above] 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 .
. . .' ”
[10] In
this matter, evidence led by the applicants at trial did not relate
to a material and indispensable element of the claim
of unfair
discrimination i.e. the arbitrary ground, the TASK system, pleaded in
terms of section 6(1) read with section 6(4) of
the EEA.
[11]
Given the above, it is not necessary for me to summarise the evidence
led to show that the applicants did the same work or
work of equal
value as G15 employees. It was submitted by Ms Ralehoko on behalf of
the applicants that the respondent should have
raised the problem of
the arbitrary ground
in limine
and it could have been argued
at that point to avoid costs. This argument does not have merit. The
applicants may have led evidence
to show that the TASK system itself
or the manner it had been implemented amounted to unfair
discrimination. This they did not
do. In these circumstances, the
application for absolution must succeed. I make the following order:
Order
1.
Absolution is granted against the applicants with costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants
:
Cheadle Thompson & Haysom inc
Respondent
:
Cliffe Dekker Hofmeyr Inc
[1]
GN R595 in GG 37873 of 1 August 2014
[2]
2016 (4) SA 403
(SCA) at paras 31 and 32