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[2018] ZALCJHB 276
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Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018)
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: J 698/15
In
the matter between:
IMPALA
PLATINUM LTD
Appellant
and
JONASE,
NOMAKHUMSHA ELISE
First
Respondent
TIKANE,
MARY
Second
Respondent
CCMA
Third
Respondent
E
HLONGWANE N.O.
Fourth
Respondent
Heard
:
17 August 2017
Delivered
:
24 August 2017
Summary:
Appeal in terms of Employment Equity Act s 10(8).
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an
appeal in terms of s 10(8) of the Employment Equity Act
[1]
against an arbitration award made in terms of s 6 of the EEA.
[2]
The relevant subsections are these:
“
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.”
“
Section 10
Disputes concerning this Chapter
(1)
…
(2)
Any party to a dispute concerning this Chapter may refer the dispute
in writing to the CCMA within six months after the act
or omission
that allegedly constitutes unfair discrimination.
(3)
…
(4)
…
(5)
The CCMA must attempt to resolve the dispute through conciliation.
(6)
If the dispute remains unresolved after conciliation–
(a) any party to the
dispute may refer it to the Labour Court for adjudication;
(aA)
an employee may refer the dispute to the CCMA for arbitration if—
(i) the employee alleges
unfair discrimination on the grounds of sexual harassment; or
(ii) in any other case,
that employee earns less than the amount stated in the determination
made by the Minister in terms of section
6 (3) of the Basic
Conditions of Employment Act; or
(b) any party to the
dispute may refer it to the CCMA for arbitration if all the parties
to the dispute consent to arbitration of
the dispute.
(7)
…
(8)
A person affected by an award made by a commissioner of the CCMA
pursuant to a dispute contemplated in subsection (6) (aA) may
appeal
to the Labour Court against that award within 14 days of the date of
the award, but the Labour Court, on good cause shown,
may extend the
period within which that person may appeal.”
[3]
In this
case, two employees
[2]
–
Ms Nomakhumsha Elsie Jonase and Ms Mary Tikane – referred a
dispute to the CCMA
[3]
in terms
of s 10(6)(aA)(ii), alleging discrimination based on pregnancy.
Conciliation having failed, the arbitrator
[4]
found in their favour and made the following award:
[5]
“
The employer,
Impala Platinum Ltd, is ordered to compensate the applicants,
Nomakhumsha Elsie Jonase = R17 000 (R8 500 per month
x 2 months); and
Mary Tikane = R 32 000 (R16 000 per months x 2 months) for the unfair
discrimination not later than 24 April 2015.
The employer is ordered
to amend its policy to accommodate pregnant women to prevent the same
or similar unfair discrimination from
occurring in future by no later
than the 25
th
May 2015.
The employer is ordered
to pay a loss of salary to the applicants amounting to R34 000 (R8
500 x 4 months) (Jonase); and R64 000
(R16 000 x 4 months) (Mary) by
no later than 24 April 2015.”
Background facts
[4]
Both employees worked underground at an Impala Platinum mine. They
were two of a number of employees who became pregnant “due
to
the strike”, as their trade union, AMCU, put it. The company
has a policy that provides that it will attempt to place
pregnant
women in suitable alternative employment on surface “where
reasonably practicable” in order to prevent any
risk to the
health and safety of pregnant women working underground or their
unborn children.
[5]
The two complainants were amongst those who were moved to the
surface. The employer could not find alternative places for them
(and
a number of others). Out of 21 pregnant employees, only two had the
requisite skills for available administrative posts. The
other
employees were then told to take their four months’ paid
maternity leave, with a further choice of unpaid maternity
leave of
up to six months. Before going on maternity leave, these two
complainants were accommodated in the union offices and paid
their
salaries for about three months, even though they were not doing any
work for the company, while the company still sought
alternative
positions.
[6]
The complainants referred a dispute to the CCMA in November 2014.
They allege unfair discrimination in terms of s 10 of the
EEA and
stated: “We want to be treated fair like other pregnant
employees”. Conciliation failed. They referred the
dispute to
arbitration and stated again: “We want to be treated fair like
other pregnant employees”.
The award
[7]
The arbitrator heard the evidence of Ms Jonase and Ms Tikane; and
that of the company’s human resources officer, Tsokgofatse
Molefe Mabyane. The arbitrator correctly noted that it was the
employees’ submission that they were unfairly discriminated
against “as the employer failed to find them alternative
employment”; and the employer’s submission that it had
complied with its policy on pregnant employees.
[8]
The arbitrator then found, without further ado:
“
It is clear from
the evidence provided that the applicants were indeed discriminated
against. The truth of the matter is that the
duty I son the employer
to provide employees with a safe working environment, however, that
does not mean that employees should
be prejudiced or be disadvantaged
in the process. I agree with the employer that it is risky to allow
pregnant employees to work
underground but I disagree with the fact
that an employer can direct employees to take unpaid leave where it
is unable to secure
an alternative. I am of the view that the
employer’s failure to find alternatives was unfair to employees
and that constitutes
discrimination as the sole reason for the
failure is the employees’ pregnancy. The employer is actually
saying those who
fell pregnant would do that at their own peril as
there is no guarantee that an alternative will be found, and that
cannot be condoned.”
[9]
The commissioner found that “the applicants were treated
differently
from other pregnant employees
”; and from
that, concluded that “the differentiation amounted to unfair
discrimination”. She went further and
found that the maternity
policy “is unfair as it discriminates against pregnant
employees”; and that the employer had
a responsibility to find
alternative employment for the complainants or to pay them.
Grounds of appeal
[10]
The appellant raises three grounds of appeal:
10.1 The commissioner
erred in finding that, on the facts before her, discrimination had
been established.
10.2 The commissioner
wrongly considered issues not before her and granted relief that was
outside her proper remit.
10.3 The commissioner
wrongly concluded that the failure by Implats to secure suitable
alternative employment for these two employees
was
per se
unfair
discrimination.
Evaluation
[11]
Mr
Masher
, for the company, argued that the arbitrator wrongly
concluded that discrimination had been proven; and that she acted in
excess
of her powers, i.e.
ultra vires
, in ordering the
company to amend its policy. Mr
Cook
, for the employees,
submitted that they had established discrimination on the ground of
pregnancy; and that the arbitrator had
correctly decided on the
policy, as “the fairness of the policy was central to the
matter”.
Was discrimination
proven?
[12]
The test
for discrimination on a listed ground is by now well known.
[6]
The first question to be asked is whether there was differentiation
amounting to discrimination. If there is and it is on listed
ground
then discrimination will be established. And then the next step of
the inquiry is whether the discrimination was unfair.
In order to
establish unfairness the commissioner would have had to focus on the
impact of the discrimination on the complainants
and other persons
who are similarly situated. In the context of the EEA, the
Constitutional Court in
Mbana
v Shepstone & Wylie
[7]
reiterated:
“
The EEA proscribes
unfair discrimination in a manner akin to section 9 of the
Constitution. Apart from permitting differentiation
on the basis of
the internal requirements of a job in section 6(2)(b), the test
for unfair discrimination in the context
of labour law is comparable
to that laid down by this Court in
Harksen
.
The first step is to
establish whether the respondent’s policy differentiates
between people. The second step entails establishing
whether that
differentiation amounts to discrimination. The third step involves
determining whether the discrimination is unfair.
If the
discrimination is based on any of the listed grounds in section 9 of
the Constitution, it is presumed to be unfair.
It must be noted,
however, that once an allegation of unfair discrimination based on
any of the listed grounds in section 6 of the
EEA is made, section 11
of the EEA places the burden of proof on the employer to prove that
such discrimination did not take place
or that it is justified.
Where discrimination is alleged on an arbitrary ground, the burden is
on the complainant to
prove that the conduct complained of is not
rational, that it amounts to discrimination and that the
discrimination is unfair.”
[13]
But in that
case, the applicant – who claimed unfair discrimination based
on race – did not get out of the starting
blocks as her
comparator was also black:
[8]
“
What is startling
is that Mr Mchunu’s case demonstrates how the differential
treatment was unlikely attributable to race or
social origin.
Like Ms Mbana, he is also a black person. In the circumstances,
Ms Mbana’s claim that she was
discriminated against on the
basis of race loses traction. Although Ms Mbana alleges that Mr
Mchunu was employed by the respondent
because he had a bursary from
Unilever, a large client of the respondent, she proffers no evidence
to sustain this allegation.
She has similarly failed
to demonstrate how the alleged unfair discrimination was based on an
arbitrary ground. Ms Mbana has
not shown that the respondent’s
recruitment policy was irrational, that it amounted to discrimination
or that it was unfair.
Instead, the respondent has reasonably
justified its policy and its application of the policy to her
circumstances.”
[14]
A similar
point was made by Cheadle AJ in
Lewis
v Media 24 Ltd
[9]
:
“
The concept of
discrimination is made up of three issues: differential treatment;
the listed or analogous grounds; and the basis
of, or reason for, the
treatment. Once a difference in treatment is based on a listed
ground, the difference in treatment becomes
discrimination for the
purposes of section 9 of the Constitution and section 6 of the EEA.
The first issue concerns
the difference in treatment. There must be a difference in treatment
in which the employee is less favourably
treated than others.
In some instances, this may require a comparison between the victim
and a comparator – the so-called
‘similarly situated
employee’. In other instances, it may be evident that the
employee is treated differently from
others precisely because of the
targeted nature of the treatment, for example sexual harassment or
trade union victimisation.”
[15]
In this case, the employees complained that they were treated
differently from other pregnant employees. Yet the commissioner
simply found that the company had discriminated against them because
they were pregnant. The complaint, contrary to what the commissioner
found, was negated by their comparator being other pregnant women.
The treatment of some pregnant women compared to other pregnant
women
simply cannot constitute discrimination based on pregnancy. They were
not treated differently because they were pregnant;
they were treated
differently from some other pregnant employees who were given
alternative employment because they did not have
the requisite
skills.
[16]
Mr
Cook
argued that “the matter did not deal solely with
the discrimination within a category of pregnant women, it also dealt
with
the discrimination of pregnant women in respect to other
employees. It is submitted that the true complaint was not about the
alleged
unfair treatment of certain women within the category of
pregnant women, rather it was about the discriminatory treatment of
pregnant
women as opposed to employees who were not pregnant.”
[17]
That submission is simply not borne out by the documents, evidence,
arguments and facts before the arbitrator. Examples abound.
[18]
In their
referral to conciliation, the employees
[10]
describe their dispute as “unfair discrimination s 10 related
to pregnancy”; but then they confine that dispute to
state that
the outcome they require is that “we want to be treated fair
like
other pregnant employees
”.
[11]
[19]
If there was any uncertainty that “other pregnant employees”
were the comparators in respect of whom the complainants
wanted to be
treated alike, that was dispelled after conciliation had failed and
they referred the dispute to arbitration. Again,
they stated
unequivocally in LRA form 7.13: “We want to be treated fair
like other
pregnant employees
”.
[20]
At the start of the arbitration itself, the commissioner gave the
parties an opportunity to make opening statements. The employees
were
represented by an AMCU trade union official, Mr Eric Ntsimane. He
said:
“
According to
Impala procedure concerning pregnant women there is a clause that
says the pregnant women must be given alternative
employment if such
employment is available. And in this regard these ladies [i.e. the
two employees who referred the dispute to
arbitration] do have
alternative jobs that was communicated to the union from the HR at
the shafts and at top management. They
communicated with us that they
are having a problem, they’ve got a lot of women who are
pregnant due to the strike.
…
After those ladies were
given those alternate jobs, we were surprised some of them were
withdrawn from those offices. … Now
we feel very strongly that
those who were removed were unfairly discriminated because there is a
job…”
[21]
It was
clear that the Union’s and the employees’ complaint was
that they were treated differently from other
pregnant
employees who were given alternative surface jobs. Not once did they
complain about all pregnant women, or even pregnant women
working
underground, from being treated differently to other workers because
of their pregnancy. Nor did they complain that the
policy itself was
unfair. In fact, explained Mr Ntsimane: “What I will ask the
Commissioner to decide on is to see to it
that the pregnant ladies
are treated with respect
and
the company follows their procedure
.”
[12]
“Because they [the complainants] still haven’t got their
rights, the company is not even treating them
as
the treated the other pregnant ladies
."
[22]
At the arbitration the second respondent, Ms Tikane, was specifically
asked under cross-examination: “Now why would you
believe that
you were unfairly treated?” Her response relates only to the
other pregnant employees:
“
It’s because
after the meeting between the union and the management it was then
said that the two ladies who reported after
us they will be kept
until they are 7 months pregnant and then they said the rest of us we
can go home.”
[23]
The commissioner also pertinently asked the first respondent, Ms
Jonase: “Why do you believe you were unfairly discriminated?”
[
sic
]. Her response:
“
Because people
that I was with them at the Minpro Service doing the same job they
were left behind while I was sent home and even
in my shaft they were
people who reported while I was there but they were left behind
without space.”
[24]
And when the commissioner asked her what relief she thought, she did
not ask for the policy to be amended with regard to all
pregnant
employees. Her response was:
“
Commissioner the
directive should state clearly that if the company has a policy that
a pregnant woman will be afforded alternative
employment it should be
like that and if the company says it does not have alternative
employment for pregnant women it should
clearly state that not only
other few people should have alternative employment.”
[25]
The arbitrator applied the incorrect test to establish the existence
of discrimination based on pregnancy. On that ground alone,
the
appeal must succeed. The employees have not established
discrimination on the ground of pregnancy.
Ultra vires?
[26]
As set out above, the complainants never complained about the
fairness of the policy on pregnant employees itself; yet the
commissioner
mero motu
ordered Impala Platinum to amend it.
[27]
It was not within the commissioner’s powers to strike down the
policy. It was not part of the complaint before her.
[28]
As Murphy J
pointed out only last week in
South
African Reserve Bank v Public Protector
[13]
in the context of a review application, a functionary may not impose
a remedy that goes beyond the original complaint before her.
The same
goes for this appeal: The commissioner was not empowered to impose
the remedy that she did. The fairness of the policy
was not part of
the complaint before her. And Impala Platinum was not called upon to
defend the fairness of the policy as applied
to all pregnant
employees. The appeal must succeed on that ground as well.
Duty to find suitable
alternative employment
[29]
The commissioner found that there is an absolute duty on Implats to
find suitable alternative employment for pregnant employees
and that
the failure to do so is
per se
unfair discrimination. But that
is not what the policy provides for, and the policy—which sets
out guidelines in any event
– was not challenged. The policy
aims to ensure that pregnant employees are not exposed to a dangerous
workplace, i.e. underground.
It states:
“
Where a woman is
withdrawn from a particular job on grounds of health and safety the
company will not guarantee ‘risk-free’
employment and
will only provide alternative employment if such employment is
available. It is not a legal requirement nor is it
a legal obligation
that Implats creates a position to accommodate such an employee.”
[30]
If the employer cannot find them suitable alternative employment, the
maternity policy kicks in. In this case, there were no
suitable
alternative positions available for the complainants. And in those
circumstances, there was no further duty on the employer
to create
non-existent positions for them. The employer acted lawfully,
rationally and in accordance with its own policy.
Conclusion
[31]
The complaint was not about the policy itself; it was directed at the
way it was applied to these two (initially five) complainants
vis-à-vis other pregnant employees. Put differently, the
complainants compared themselves to other similarly situated pregnant
employees.
[32]
The complainants failed to establish any discrimination. The
commissioner exceeded her powers when she ordered the company
to
amend its policy when that was not the complaint before her. And
there was no absolute duty on the employer to find alternative
positions for the complainants.
Costs
[33]
Mr
Masher
asked for costs to follow the result. I am not
persuaded. It appears that AMCU is no longer representing the two
employees (at
least not formally). They are still employed by
Implats. They had an award in their favour, and it was not
unreasonable of them
to oppose the appeal. Taking the dictates of
fairness into account, I do not consider a costs award to be
appropriate.
Order
[34]
I therefore make the following order:
34.1 The appeal in terms
of s 10(8) of the Employment Equity Act is upheld.
34.2 The arbitration
award of the fourth respondent, Commissioner E Hlungwane, dated 25
March 2015 is set aside.
34.3 It is declared that
the appellant, Impala Platinum Ltd, did not unfairly discriminate
against the first and second respondents.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Dion
Masher of Edward Nathan Sonnenbergs.
FIRST
and SECOND RESPONDENTS:
A
L Cook
Instructed
by Larry Dave Inc.
[1]
Act
55 of 1998 (EEA).
[2]
The
first and second respondents in this appeal. There were initially
five complainants, but only two attended the arbitration
and the
award dealt only with them.
[3]
The
third respondent.
[4]
The
fourth respondent, Commissioner Elelwani Hlungwani.
[5]
Quoted
verbatim.
[6]
Harksen
v Lane
[1997] ZACC 12
;
1998
(1) SA 300
(CC) par 54.
[7]
(2015)
36
ILJ
1805 (CC) paras 25-26.
[8]
Shepstone
& Wylie
above
paras 35-36.
[9]
(2010)
31
ILJ
2416 (LC) paras 36-37.
[10]
At
that stage, the two employees now before Court as well as three
others.
[11]
My
underlining.
[12]
My
underlining.
[13]
[2017]
ZAGPPHC 443 (15 August 2017) paras 39-42.