About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 41
|
|
United National Transport Union obo Members v Bombela Operating Company (Pty) Ltd (JS876/16) [2018] ZALCJHB 41 (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 876/16
In the matter between:
UNITED NATIONAL TRANSPORT UNION
OBO
MEMBERS
Applicant
And
BOMBELA OPERATING COMPANY (PTY)
LTD
Respondent
Heard:
12 May 2017
Delivered:
8 February 2018
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1] The
applicant,
United National Transport Union (UNTU)
seeks leave to amend its statement of claim that was filed on
4 November 2016. The respondent, Bombela opposed the
application
on grounds that the proposed amendments renders the
pleadings excepiable since they do not disclose a cause of action
and/ or are
vague and embarrassing.
Background:
[2]
UNTU brought a claim on behalf
of its members in terms of the provisions of sections 6(1) and 6(4)
of the Employment Equity Act
(EEA).
[1]
In its statement of claim, it alleged that its members, who are
employed by Bombela, were being unfairly discriminated against
on the
basis that they were not appropriately remunerated for equal work.
The essence of the allegation is that Bombela has contravened
the
principle of ‘equal pay for equal work’.
[3]
Bombela on 18 November 2016, filed a notice calling upon
UNTU to remove the cause of action and to accordingly amend
the
statement of claim. The exception to UNTU’s statement was
raised on the basis that;
a)
It lacked averments to sustain
a cause of action and/ or did not disclose a cause of action in terms
of the provisions section 6(1)
[2]
of the EEA and;
b)
It was vague and embarrassing in that UNTU alleged to act on
behalf
of its members, but had failed to identify these members and/ or
failed to cite them in the pleadings.
[4]
Bombela’s exception was enrolled for hearing and came
before LaGrange J on 10 February 2017. The parties
presented
a draft order, which was in turn made an order of court.
The terms thereof are as follows:
1.
The claimant will file an
amendment to its statement of claim dated 3 November 2016
on or before 24 February 2017;
2.
In the event that the
claimant fails to amend its statement of claim by 24 February 2017,
the exception is upheld and
the claim is dismissed.
3.
The claimant tenders the
excipient’s costs up to 8 February 2017;
4.
The costs of the
appearance of 10 February 2017 are on the unopposed scale;
[5] On
24 February 2017, UNTU filed its notice of intention to
amend the statement of claim. Bombela contended that the
amendments
essentially had the effect of removing the original statement of
claim and replacing it with a “new” one.
[6] On
3 March 2017, Bombela filed its notice of objection to
UNTU’s notice of intention to amend. The objection
was that the
“new” statement of claim still failed to establish a
cause of action in terms of sections 6(1) and 6(4)
of the EEA.
Bombela contended that the statement of claim merely referred to an
arbitrary ground of discrimination, but failed
to identify the
alleged arbitrary ground or the grounds upon which it sought to rely.
[7] On
10 March 2016, UNTU filed a notice seeking an amendment in
accordance with its notice of intention to amend.
Submissions
by parties:
[8] UNTU
contends that its claim is premised on the following;
8.1.
Bombela employs security personnel at various Gautrain Stations and
trains.
The security personnel are divided into two categories,
namely the Station Security Manager and the Assistant Security
Manger.
8.2.
The difference between the two positions is in respect of the
inherent
job requirements of the positions. A Station Security
Manager is required to have at least 10 years’ previous working
experience
in the Police Service at a rank of Warrant Officer or
above and/or at least 15 years’ experience in the Security
Industry.
On the other hand the Assistant Station Security Manager is
required to have at least five (5) years’ previous working
experience
in the Police Service at a rank of Sergeant or above
and/or at least seven (7) years’ experience in the security
industry.
8.3.
UNTU contends that security personnel are employed centrally and are
stationed on an
ad-hoc
and/ or rotational basis at different
Gautrain stations. It further alleges that Station Security Managers
who perform the same
work do not receive equal remuneration.
Similarly, Assistant Station Security Managers who perform the same
work do not receive
equal remuneration.
8.4.
In the result, the discrepancies in the remuneration are arbitrary
and
amount to unfair discrimination under the EEA.
8.5.
UNTU further contends that the provisions of section 6(4) of the EEA
contemplate 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
based on any of the grounds listed above is unfair discrimination.
8.6.
It is conceded that the payment of different remuneration for equal
work
does not automatically constitute unfair discrimination.
However, if the motive for doing so amounted to direct or indirect
discrimination
on any listed or arbitrary ground, it constituted
[unfair] discrimination.
8.7.
UNTU contends that the amendments as filed on 24 February 2017
met the legal requirements as they outline the necessary material
facts to sustain a cause of action for [unfair] discrimination
on
arbitrary grounds as contemplated by the EEA. The amendments did so,
in the following manner:
8.7.1.
They record that Bombela employed two categories of security
personnel, being
Station Security Managers and Assistant Station
Security Managers.
8.7.2.
They outline the factual basis for providing that the work performed
by both
Station Security Managers and Assistant Station Security
Managers was relatively the same. This is was with reference to their
job description, the educational requirements for both positions and
the minimum previous work experience.
8.7.3.
They further lay the factual basis for contending that Bombela did
not remunerate
all Station Security Managers and Assistant Station
Security Managers equally. This was achieved through comparing
payslips of
listed Station Security Managers and Assistant Station
Security Managers.
8.7.4.
They demonstrate the factual basis for proving that the
differentiation in
the remuneration is unfair and arbitrary. These
contentions were fortified by the fact that;
a)
all Station Security Managers performed the same work;
b)
all Assistant Station Security Managers performed the same work;
c)
the differentiation in remuneration was not as a result of the
respective employees’ seniority, length of service,
qualification and/ or abilities and/ or competence and/ or
experience;
d)
the unequal treatment could not be justified in respect of Bombela’s
operational or commercial needs;
e)
the unequal treatment was arbitrary, capricious and without
purpose or justification and appeared to be based on Bombela’s
whim, and;
f) the unequal
treatment undermined the inherent work of employees and was
demeaning.
8.8.
UNTU further contends that there was no basis for Bombela to oppose
the
proposed amendments as they lay the factual basis for the claim,
of arbitrary discrimination in terms of the provisions of section
6(1) and 6(4) of the EEA.
8.9.
UNTU disputed that the amendments were vague and embarrassing, as
Bombela
knew what case it has to meet. It was therefore for Bombela
to demonstrate that the unequal treatment of Station Security
Managers
and Assistant Station Security Managers was justified, not
capricious and informed by legitimate commercial needs.
[9]
Bombela contends that although
as a general rule, amendments are to be granted, it was however
accepted that an amendment, which
would render the relevant pleading
excepiable, cannot lead to a decision on the real issues and should
not be granted
[3]
.
It further contends that no purpose would be served by granting an
amendment in the knowledge that an exception can be raised
against
the amendment. The basis for its argument in this regard is as
follows:
9.1.
UNTU alleged that the purported discrepancy in the remuneration of
the
security personnel was unfair discrimination on an arbitrary
ground with the meaning of the provisions of section 6(1) of the EEA,
because it was based on the whim of the employer. That assertion
however was not sufficient to found a cause of action in terms
of the
EEA.
9.2.
Our courts have found that an arbitrary act by an employer does not
amount
to discrimination on an arbitrary ground. A litigant is
required to set out specific grounds on which the alleged
discrimination
is based, and further outline the basis that this
ground shares common characteristics with the listed grounds.
Evaluation:
[10]
An exception is a legal
objection intended to address a defect inherent in the other party's
pleadings. The Labour Court Rules do
not specifically provide for
exceptions. Exceptions can can however be raised under Rule 11 of the
Labour Court Rules read with
rule 23 of the Uniform Rules of the High
Court
[4]
.
[11]
Two categories of exceptions
are generally recognized, namely, where the pleading is vague and
embarrassing, and where the pleading
lacks averments which are
necessary to sustain an action or defence
[5]
.
Where a party raises an objection to pleadings, it is entitled to
take an exception to have the action or defence dismissed even
before
the merits of the matter are ventilated in a trial
[6]
.
This approach is aligned to the basic principle that particulars of
claim should be phrased such that a defendant may reasonably
and
fairly be required to plead thereto. The premise being that pleadings
must be lucid, logical and in an intelligible form
[7]
.
[12]
In
Harmse
v City of Cape Town
[8]
, it was specifically stated that the Rules of this Court do not
require an elaborate exposition of all facts in their full and
complex detail, as that was the role of evidence, whether oral or
documentary. Furthermore, for the purposes of a trial, there
is the
preliminary step of the pre-trial conference, which provides an
occasion for the detail or texture of the factual
dispute to begin to
take shape.
[13] In
essence, exceptions should not be raised at the spur of the moment
for the purposes of merely frustrating a claim. They
are permissible
in
inter alia
, circumstances where upon a consideration of the
proper context of the pleadings, the defects complained of are such
that they
are incapable of resolution at a pre-trial.
[14]
UNTU’s claim is premised on the provisions of Sections 6(1) of
the Employment Equity Act, which provides that no person
may unfairly
discriminate, directly or indirectly, against an employee in an
employment policy or practice on one of a number of
its specified
grounds as set out in that section, which include “on any other
arbitrary ground”. It further relied
on the provisions of
provisions of section 6 (4) of the EEA in substantiation of its
claim.
[15]
In contending that the
amendments sought should be accepted, UNTU relied on the principles
stated in
Duma v Minister of
Correctional Services and Others
[9]
for the proposition that since the facts of this case were not
dissimilar, the test was whether Bombela had put up a case as to
why
the employees did not suffer unfair discrimination, and that it was
up to it to justify the differentiation so alleged.
[16]
Bombela nonetheless insisted that even though UNTU has pleaded
differential treatment, it has not identified any attribute
to
indicate the grounds of discrimination alleged, and that the facts
in
Duma
were distinguishable in that the ground of
discrimination,
i.e
., geographical location, was identified or
stated in that matter.
[17]
In
Aarons
v University of Stellenbosch
[10]
it was held that an applicant before the court must do more than just
allege discrimination on arbitrary grounds. In addition,
an applicant
must allege more than merely differentiation in respect of the
treatment meted out by the employer or attributable
to the employer.
To this end, it must allege that the reason for the different
treatment is based on an analogous ground that adversely
affects some
characteristic that impacts upon her human dignity, failing which the
claim would be excepiable as no cause of action
would have been
disclosed.
[18]
As to what was expected of the
claimant to plead in such cases was summarised by Van Niekerk J in
SAMWU & Others v
PIKITUP
[11]
in the following terms;
“
The
relevant legal principles are clear – a mere differentiation
does not necessarily constitute an act of discrimination.
Discrimination occurs when the differentiation has as its basis one
of the specified listed grounds referred to in s6, all an unspecified
or analogies ground, or an arbitrary ground, referred to in the
section. The pleading in a claim such as the present and must
necessarily establish the differentiation and the basis on which the
claim is made, in other words, a link between the differentiation
and
a specified an unspecified ground. Where reliance is placed on the
latter, it is not sufficient to contend that the policy
or practice
complained of is arbitrary. The case must necessarily be made is
analogous to a specified ground and based upon or
shares a common
trend with a specified ground and in particular, that it exhibits
attributes or
characteristics
which have the potential to impair the fundamental dignity of the
applicants as human beings”
(Authorities
omitted)
[19]
The burden of proof in equal
pay claims rests upon a claimant to at the very least, show that the
nature and volume of work which
she/he performed in her/her position
was similar to that of comparators holding the same position. In
Minister
of Correctional Services and Others v Duma
[12]
the Labour
Appeal Court (per Davis JA) reiterated the test as follows;
“
Hence,
a claimant in an equal pay claim must establish that the work done by
a person who can be reliably classified as a comparator
is the same
or similar work. In a claim for work for equal value, it behoves a
claimant to establish that the tasks performed by
the comparator and
the claimant are of equal value, having regard to the required degree
of skill, physical and mental effort,
responsibility and other
factors...”
[13]
[20] The
issue is whether in this case, UNTU has identified the arbitrary
ground of the alleged discrimination in its pleadings,
or made any
assertion to the effect that the arbitrary ground identified by it
shared any characteristics with any specified ground
listed in
section 6 (1), or at worst, met the test set out in
Minister
of Correctional Services and Others v Duma.
[21] In
this case, even though Bombela contended that the amended statement
of case effectively replaced the old one, that argument
was not
seriously pursued, and I have no reason to believe that the amended
statement of claim is ‘new’ in the
sense that it
raises a new cause of action. The relevant content of the first
statement of case spanned to about three pages in
a total of five
pages, and Bombela was clearly correct in excepting to it. The second
(amended) statement of claim is more detailed,
and in my view, I fail
to appreciate what was expected of UNTU to do with a view of
correcting the defects pointed out in
the exception. To this end,
there is no substance to the contention that the amended statement of
claim is a ‘new statement’.
[22] The
amended statement elaborates on the distinction and
similarities with the two categories of Station Security Managers;
and comparison and figures in respect of the pay disparities between
members of both categories. An allegation is made that the
unequal
treatment of the two categories constitutes unfair and arbitrary
discrimination on about twelve listed grounds, and how
the impugned
conduct violated the principle of ‘equal pay/equal work’,
and the provisions of section 6 (1) and 6 (4)
of the EEA read with
the Code of Good Practice on Equal Pay/remuneration for work of equal
value.
[23] In
my view, UNTU in its amended statement of claim has sufficiently
identified the arbitrary grounds on which it relies, and
which shares
characteristics with the specified grounds. The proposed amendments
sufficiently addresses the objections raised by
Bombela, and have
identified the grounds on which the alleged discrimination is funded.
The material facts and the legal issues raised in
the amended statement are in my view, sufficiently detailed to enable
Bombela
to respond. It cannot therefore be said even from a cursory
glance of the amended statement of claim, that Bombela does not have
a grasp of the nature or essence of the dispute for it to know what
it is that UNTU is relying upon to succeed in its claim.
[24] To
the extent that Bombela holds the view that it still does not know
what the arbitrary ground/s relied upon are, little purpose
would be
served by affording UNTU a further opportunity to file more
amendments, particularly since this would simply delay the
finalisation of the matter. Furthermore, these are issues that can be
dealt with in particular detail in the course of a pre-trial
conference.
[25] I
have had regard to considerations of law and fairness and do not deem
it warranted to make any cost order.
Order:
[26] In
the premises, the following order is made:
1.
The application for leave to amend the Applicant’s statement
of
case is granted.
2.
The exceptions raised by the Respondent in respect of the Applicant’s
amended statement of case are dismissed.
3.
The Respondent is directed to file and serve an answering statement
to the Applicant’s amended statement of case within 30 (Thirty)
days from the date of handing down of this judgment.
4.
There is no order as to costs
_____________________
E. Tlhotlhalemaje
Judge of the Labour Court of South
Africa
APPEARANCES:
For the
Applicant:
Adv. K Millard
Instructed
by:
Fluxmans Incorporated
For the Third
Respondent:
Adv. C Orr
Instructed
by:
Bowman Gilfillan Incorporated
[1]
Act 55 of 1998, as amended
[2]
Section
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)
…
[3]
In
reference to
Cross
v Ferriera
1950 (3) SA 250
(C); RM vande Ghinste & Co (Pty) Ltd
v Van de Ghinste
1980
(1) SA 250 (C)
[4]
Which
provides:
“
Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and
may set it
down for hearing in terms of paragraph (f) of sub-rule (5) of rule
6: Provided that where a party intends to take
an exception that a
pleading is vague and embarrassing he shall within the period
allowed as aforesaid by notice afford his opponent
an opportunity of
removing the cause of complaint within 15 days: Provided further
that the party excepting shall within 10 days
from the date on which
a reply to such notice is received or from the date on which such
reply is due, deliver his exception”
[5]
De Klerk v Cape Union Mart
International (Pty) Ltd
(2012)
33 ILJ 2887 (LC) at para 19.
[6]
Davidson & Ors v
Wingprop (Pty) Ltd
[2010]
4 BLLR 396
(LC) para [25].
[7]
See
Trope
v South African Reserve Bank
1992 (3) SA 208
(T)
[8]
(2003) 24 ILJ 1130 (LC);
[2003] 6 BLLR 557
(LC) paras [6] –
[10], where it was held that;
“
[6]
The statement of claim serves a dual purpose. The one purpose is to
bring
a respondent before the court to respond to the claims made of
and against it and the second purpose of a statement of claim is
to
inform the respondent of the material facts and the legal issues
arising from those facts upon which applicant will rely to
succeed
in its claims.
[7]
The material facts and the legal issues must be sufficiently
detailed
to enable the respondent to respond, that is, that the
respondent must be informed of the nature or essence of the dispute
with
sufficient factual and legal particularity so that it knows
what it is that the applicant is relying upon to succeed in its
claim.
[8]
The Rules of this Court do not require an elaborate exposition of
all
facts in their full and complex detail – that ordinarily
is the role of evidence, whether oral or documentary. There is a
clear distinction between the role played by evidence and that
played by pleadings – the pleadings simply give the
architecture,
the detail and the texture of the factual dispute are
provided at the trial. The pre-trial conference provides an occasion
for
the detail or texture of the factual dispute to begin to take
shape. In terms of rule 6(4)(b) the parties in the pre-trail
conference
must attempt to reach consensus on facts that are common
cause, facts that are in dispute, the issues that the court is
required
to decide and the precise relief claimed.
[9]
Accordingly the rules of this Court anticipate that the relief
claimed
might not have been precisely pleaded in the statement of
claim filed. The Rules of this Court further anticipate that the
factual
matters at issue will be dealt with more fully and precisely
in the pre-trail conference. The rules therefore anticipate that the
parties at the pre-trial conference will have dealt in much more
detail not only with the factual matters but also the legal
issues.
The statement of claim and response thereto foreshadows this
activity but is not a substitute for it. It is for this
reason that
the rule on pre- trial conferences provides for reaching consensus
on the issues that the court is required to decide.
[10]
When an exception is raised against a statement of claim, this Court
must
consider, having regard to what I have said above, whether the
matter presents a question to be decided which, at this stage, will
dispose of the case in whole or in part. If not, then this Court
must consider whether there is any embarrassment that is real
and
that cannot be met by making amendments or providing of particulars
at the pre-trial conference stage.”
[9]
(2016) 37 ILJ 1135 (LC); [2016] 6 BLLR 601 (LC)
[10]
(2003) 24 ILJ 1123 (LC)
[11]
Case no: JS 744/16 (Delivered: 7 February 2017) at para 6
[12]
(CA10/2016)
[2017] ZALAC 78
(23 June 2017)
[13]
At para 21