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 265
|
|
Moche v Maunga Projects CC (JS508/17) [2018] ZALCJHB 265 (22 June 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 508/17
In the matter between:
MOTA JACK
MOCHE
Applicant
and
MAUNGA PROJECTS
CC
Respondent
Heard:
11 June 2018
Delivered:
22 June 2018
Summary: An
undertaking to correct unjustified disparity in remuneration is
binding on the respondent.
DEFAULT JUDGMENT
LALLIE, J.
[1]
This is an application for default judgment. It appears that the
respondent was present when the matter served before the Court
on
14 November 2017. The Court issued an order removing the
matter from the roll and directing the respondent to file
a statement
of response within 10 days. The Respondent failed to comply with the
order and as at the hearing of this matter, the
statement of response
had not been filed.
[2]
Owing to the respondent’s failure to file a response to the
applicant’s statement of case, the Registrar of this
Court
enrolled the matter for a judgment by default. On 20 January 2018,
the Court issued an order removing the matter
from the roll and
directing the applicant to file a notice of intention to amend the
statement of claim on or before 20 March 2018,
as the
statement of claim before Court did not reveal a cause of action. The
applicant filed his notice of intention to amend on
28 March 2018
and further called upon the respondent to
file its
objection
to the intended amendment
,
if any,
within 10 days from the date of
being served with the notice of amendment. No objection was filed and
the applicant’s claim
remains undefended. The notice of
amendment is five days late and the applicant sought condonation
thereof.
[3]
This Court
has a wide discretion in terms of the provisions of Rule 12(3)
[1]
of the Rules of this Court to condone non-compliance with the
timeframes prescribed in the Rules, on good cause shown. In
determining
whether an applicant has shown good cause, the court must
take into account all the circumstances surrounding the delay and
this
includes a proper explanation for the delay, the extent of the
delay, prospects of success and prejudice the parties stand to suffer
in the event that condonation is granted or refused.
[4]
The applicant submitted that the delay in filing the notice of
amendment is wholly attributed to the
Pro Bono
Labour Law
Clinic which assisted him. In view of the fact that the delay is
minimal, the explanation thereof reasonable, the applicant
stands to
suffer prejudice for losing his right to be heard in the event of
condonation being refused, I granted the application
for condonation.
[5]
In his amended statement of claim, the applicant seeks an order
directing the respondent to pay him outstanding leave payment
and
outstanding remuneration which became due to him as a consequence of
the respondent’s discriminatory remuneration regime.
The
applicant seeks the payment of an amount of R16 500 (Sixteen
Thousand Five Hundred Rand) as payment of his outstanding
remuneration and R6 500 (Six Thousand Five Hundred Rand) for
unpaid leave.
[6]
The material facts of this matter are the following:
6.1. The applicant was
employed by the Respondent (Maunga Projects CC) on a limited duration
contract as a Community Liaison Officer
at a monthly salary of R5 000
(Five Thousand Rand)
with effect from
3 August 2015
. The applicant’s contract of
employment was renewed in January 2016. The applicant submitted
that he became aware that
other Community Liaison Officers in
Thohoyandou and Middleburg had been earning R6 500 per month as
opposed to the R5 000
he was earning. On 18 February 2016,
the applicant held a meeting with representatives of the respondent
(Mr O Ncube, Mr S Dube and Mr Tshuma)
who
agreed to cure the disparity by increasing his salary to R6 500
with effect from January 2016.
6.2. At the end of
February 2016, the respondent had not effected the increase. The
applicant exhausted all the internal dispute
resolution mechanisms to
no avail. He was then told by Mr Tshuma that he was a mere political
appointee and because of his old
age, he should abandon his salary
claim.
6.3. The applicant
refused to abandon his fight for equal pay and in November 2016,
the applicant was served with a notice
of termination of employment.
The employment relationship between the parties terminated on
30 November 2016.
6.4. The applicant
referred a claim to the Commission for Conciliation Mediation and
Arbitration (CCMA). On 10 January 2017,
the CCMA issued a
jurisdictional ruling holding that the jurisdiction of the short
payment dispute belonged to this Court.
[7]
In his statement of claim, the applicant seeks payment of the
difference insalary the respondent undertook to pay him in correcting
its discriminatory practice. He further seeks the payment of his
outstanding one month’s leave pay.
[8]
The
provisions of section 6(1) of the Employment Equity Act (EEA)
[2]
prohibits both direct and indirect unfair discrimination against an
employee in any employment policy or practice on grounds of,
inter
alia,
age and any other arbitrary grounds.
[3]
The applicant’s version remains unchallenged and it is that the
respondent acknowledged that no reason existed for remunerating
him
at a rate lower than his counterparts who work for the respondent. He
was instead told to stop pursuing his fight for equal
pay because he
was old and a political appointee. Both the respondent’s
reasons for refusing to fulfil its undertaking to
pay the applicant
at the same rate as his counterparts are prohibited in terms of the
provisions of section 6(1) of the EEA. Age
is the listed ground and
being a political appointee constitutes an arbitrary ground as it
cannot be fairly used to treat the applicant
differently from his
counterparts. The respondent’s conduct therefore constituted
unfair discrimination as envisaged in section
6 of the EEA.
[9]
The applicant was told in November 2016 to abandon his fight for
equal pay. He referred his dispute to the CCMA during
January 2017
and he filed his statement of claim on 6 July 2017. He
submitted that a months’ leave pay was
due to him. Based on the
respondent’s undertaking to cure its discriminatory practice
and increase his salary by R1 500
per month the amount due to
the applicant for outstanding salary from January 2016 to end
November 2016 is R16 500.
[10]
In the premises, the following order is made:
Order:
1. The late filing of the
notice of amendment is condoned.
2. The respondent is
ordered to pay the applicant outstanding leave pay in the amount of
R6 500 (Six Thousand Five Hundred
Rand).
3. The respondent is
ordered to pay the applicant outstanding salary in the amount of
R16 500 (Sixteen Thousand Five Hundred
Rand).
4. There is no order as
to costs.
_____________________
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: In person
For
the Respondent: No appearance
[1]
Rule 12
Extension
of time limits and condonation
:
(1)
(2)
(3) The court may, on
good cause shown, condone non-compliance with any period prescribed
by these rules.
[2]
Act 55 of 1998, as amended
[3]
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) …