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[2018] ZALCCT 38
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Naidoo and Others v Parliament of the Republic of South Africa (C865/2016) [2018] ZALCCT 38; [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (12 December 2018)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Reportable
Case no: C 865 / 2016
In
the matter between:
K
NAIDOO AND 68
OTHERS
Applicants
and
PARLIAMENT
OF THE REPUBLIC OF SOUTH AFRICA
Respondent
Heard:
15 November 2018
Delivered:
12 December 2018
Summary: The meaning
of ‘any other arbitrary ground’ as per section 6(1) of
the Employment Equity Act, wage differentiation
dispute, wide v
narrow interpretation of the phrase ‘any other arbitrary
ground’.
JUDGMENT
PRINSLOO, J
Background facts
[1]
The
Applicants are members of the Parliamentary Protection Services (PPS)
and they are all employed by the Respondent as protection
officers.
During 2015 and following incidents in the National Assembly, a
resolution was passed to enhance the capacity of the
PPS. Two new
positions came into existence, namely Control: Chamber Support
Officer (CCS) and Chamber Support Officer (CSO) and
a total of 66 of
these positions were created. The process was expedited and done in
two phases. Phase 1 entailed the creation
of the new positions for
which external candidates of the South African Police Services (SAPS)
were invited to apply, as the existing
PPS did not have the necessary
capabilities. A total of 37 appointments were made from the ranks of
members of the SAPS and they
were appointed on salaries higher than
those earned by the Applicants. The remainder of the positions were
earmarked to be filled
from the ranks of the PPS, once certain
processes, including training and mentoring, were completed. Arising
from this, the Applicants
have brought a wage discrimination claim in
terms of the provisions of section 6(4) of the Employment Equity
Act
[1]
(EEA).
[2]
The Applicants’ case is premised on
the provisions of section 6(4) of the EEA that provides that 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 section 6(1), is unfair
discrimination.
[3]
The Applicants’ case is that the
newly appointed CSO’s are earning higher salaries than them,
notwithstanding the fact
that the CSO’s have lesser service and
experience and perform only part of the functions of the job descript
of a protection
officer. There is no justifiable or fair reason for
the wage disparities and the said disparities constitute
discrimination on
an arbitrary ground. The decision to pay the CSO’s
higher salaries is capricious, unjustifiable and arbitrary.
[4]
The alleged arbitrary and capricious
decision is based on an act of nepotism by the manager, Mr van der
Spuy, who head hunted his
erstwhile colleagues from the SAPS and the
only reason why the CSO’s are remunerated at a higher rate, is
because they were
employed by the SAPS and the Applicants were not.
The Applicants further contend that they are discriminated against
based on their
longer years of service.
[5]
The Respondent filed a statement of
response wherein it was firstly denied that the work performed by the
Applicants and the CSO’s
was the same or substantially the same
or work of equal value and even if it was found to be of equal value,
there was justification
for the wage disparity.
[6]
The Respondent’s case is that the
wage disparity is not based on an arbitrary ground of discrimination
and the Applicants’
reliance on nepotism and employment by SAPS
does not constitute an arbitrary ground of discrimination.
[7]
The parties subsequently filed a pre-trial
minute wherein they agreed that a legal point should be argued
upfront.
The legal point
[8]
The legal point to be considered is whether
the Applicants’ description of the alleged wage disparity as
capricious, baseless,
unfair, unreasonable and unjustifiable
establishes an arbitrary ground for discrimination for the purposes
of section 6(4), read
with section 6(1) of the EEA.
[9]
The legal point requires this Court to
determine two main issues. Firstly, the meaning of ‘an
arbitrary ground’ as provided
for in section 6(1) of the EEA
and secondly, whether the Applicants’ pleaded case is based on
such a ground. If it is not,
the Respondent’s preliminary point
stands to be upheld and the Applicants’ claim be dismissed. If
the preliminary point
is dismissed, the matter should proceed to
trial. The parties are
ad idem
on
this.
The meaning of an
arbitrary ground
[10]
The phrase ‘or on any other arbitrary
ground’ was added to section 6(1) and section 6(4) was added to
the EEA by way
of the 2013 amendments to the EEA, which came into
operation on 1 August 2014.
[11]
Section 6(1) of the EEA provides that:
‘
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.’
[12]
Section 6(4) of the EEA provides that:
‘
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.’
The wide vs narrow
interpretation
[13]
The meaning of an ‘arbitrary ground’
gave rise to a wide and narrow interpretation of the phrase, leading
to conflicting
judgments.
[14]
On the wide interpretation, arbitrariness
is itself a ground of discrimination.
[15]
On the narrow interpretation, in order to
qualify as an arbitrary ground, the ground relied upon must be
analogous to a listed ground
of discrimination, in the sense that it
has the potential to impair upon human dignity in a comparable
manner, or have a similar
serious consequence.
[16]
Mr de Kock for the Applicants argued that
this Court should adopt the wide interpretation that ‘arbitrary’
means ‘irrational’
and ‘capricious’ in
respect of section 6(4) wage differentiation disputes and that ‘any
other arbitrary ground’
must be extended to include any actions
which are irrational or which may in itself be determined by no
principle. If the act of
differentiation cannot be justified, it is
discriminatory.
[17]
On the other hand, Mr Myburgh for the
Respondent, submitted that this Court should follow the narrow
interpretation. Mr Myburgh
submitted heads of argument that were of
great assistance to this Court.
[18]
Turning
to the case law: in
Pioneer
Foods (Pty) Ltd v Workers
[2]
(April 2016)
,
which
was decided after the amendment of the EEA and dealing with section
6(1), the Court adopted the narrow interpretation and
held that:
[3]
‘
Mention
has already been made above of the test articulated in
Harksen
[4]
… as regards the test to be applied in determining whether a
proffered unlisted ground actually constitutes an 'other arbitrary
ground'. In short, if the differentiation is not on a specified
ground, then whether or not there is discrimination will depend
upon
whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental
human dignity of persons as human beings or to affect them in a
comparably serious manner.
Where a collective
agreement stipulates different pay levels for employees with
different periods of service with the employer concerned,
this is not
arbitrary differentiation, nor is 'length of service' (or being a
'new employee') an unlisted ground meeting the test
just referred
to.”
“
Moreover,
length of service with the employer concerned as a factor affecting
pay levels is not an 'other arbitrary ground', as
contemplated in s
6(1) or in the test laid down by the Constitutional Court. Treating
people differently in the workplace in accordance
with their length
of service with the employer does not impair their fundamental human
dignity or affect them adversely in a comparably
serious manner. The
unlisted ground proffered by the union in its heads of argument did
not qualify. That too should have been
the end of its case.’
[19]
Having
disposed of the matter, the Court proceeded:
[5]
‘
And
even if the inclusion of an 'arbitrary' ground is meant to widen the
scope of discrimination in the context of equal pay for
work of equal
value, the distinction in this case – length of service –
is not arbitrary. This wider reading of the
new subsection is
discussed in these terms by Du Toit:
[6]
“
[T]he
reintroduction of the prohibition of discrimination on ‘arbitrary’
grounds cannot be understood as merely reiterating
the existence of
unlisted grounds, which would render it redundant. To avoid
redundancy, ‘arbitrary’ must add something
to the meaning
of ‘unfair discrimination’. Giving it the meaning
ascribed to it by Landman J in
Kadiaka
[7]
– that is, ‘capricious’ or for no good reason –
would broaden the scope of the prohibition of discrimination
from
grounds that undermine human dignity to include grounds that are
merely irrational without confining it to the latter.”
But even on this broader
interpretation, the differentiation between new entrants and longer
serving employees is rational, sanctioned
by collective agreement,
and envisaged by the code of good practice.’
[20]
It
is evident that these comments were not necessary for the
determination of the matter, they were made
obiter
[8]
and the case was disposed of by adopting the narrow interpretation.
[21]
In
March 2017, the case of
Ndudula
and Others v Metrorail – Prasa (Western Cape)
[9]
also dealt with the amended section 6(1) of the EEA and settled the
position in a number of respects. Firstly,
dealing
with reliance on the Court’s
obiter
comment in
Pioneer
Foods
,
it was made clear that
“
[t]his
view is not part of the reasoning for the finding in Pioneer
Foods
”.
[10]
I accept that the comment made in
Pioneer
Foods
is
no more than an
obiter
remark
and it carries no more weight than a judicial observation made in
passing.
[22]
Secondly,
the Court expressly rejected the views of
Du
Toit
[11]
and placed the findings made in
Kadiaka
v
Amalgamated Beverage Industries
[12]
in
context.
[23]
Thirdly,
the Court adopted the narrow interpretation and held that:
[13]
‘
When
the amended section 6(1) is interpreted contextually with the amended
section 11(2), ‘arbitrary ground’ in the
phrase ‘or
any other arbitrary ground’ refers to an unlisted ground also
called unspecified grounds or grounds analogous
to the listed
grounds.’
[24]
The
Court interpreted section 6 of the EEA and concluded that Parliament
did not purport to introduce a third category of grounds
upon which
an employee could challenge the conduct of an employer. The effect of
the amendment simply is that, discrimination on
any arbitrary ground
affecting human dignity constitutes unfair discrimination. In the
event of the listed grounds, discrimination
is presumed and any other
arbitrary ground that affects human dignity requires that the
complainant must define the ground and
has the burden of proof
[14]
.
[25]
In
September 2017, judgment in
Sethole
v Dr Kenneth Kaunda District Municipality
[15]
was handed down and although it dealt with the pre-amended section
6(1), the Court made important findings about the amended section.
The Court endorsed the narrow interpretation adopted in
Pioneer
Foods
(with reference to
Harksen
),
[16]
and found:
[17]
‘
Accordingly,
discrimination contemplated in this context means that it has to be
shown that
dignitas
or right of equality of the complainant as a person, or that person’s
personal attributes and characteristics, have been
impaired or
prejudiced. To describe it simply, the arbitrariness must be
something akin or related to the kind of listed grounds
in section
6(1) of the EEA.’
[26]
Dealing
with the concept of arbitrariness, the Court held that:
[18]
‘
In
simple terms, the phrase ‘arbitrary’ in the context of
the unlisted grounds in terms of section 6(1) of the EEA is
not a
synonym for ‘irrationality’ or even lawfulness. They are
different concepts. Something may therefore be irrational
or
unlawful, but would not be discrimination, without also establishing
the ‘further element’ as
per
Prinsloo
[19]
[i.e. discrimination].’
[27]
In
June 2018, judgment in
Chitsinde
v Sol Plaatje University
[20]
was
handed down and in addressing the meaning of an arbitrary ground, the
Court quoted with approval the commentary by
Du
Toit
,
as already referred to
supra
[21]
,which
encapsulates the wide interpretation to broaden the scope of the
prohibition of discrimination from grounds that undermine
human
dignity to include grounds that are merely irrational.
[28]
The
Court found that the applicant had not proven discrimination in the
“pejorative” sense and concluded that the applicant’s
treatment was “not ‘arbitrary’ in the sense of
being irrational”,
[22]
with the result that his complaint failed.
[29]
The essence of the issue to be decided is
whether, in interpreting the meaning of ‘arbitrary ground’,
this Court is
to accept a narrow or a wide interpretation.
[30]
In my view the correct approach is to
accept the narrow interpretation and I say so for a number of
reasons.
[31]
Firstly,
I am inclined to follow, in fact I am bound to follow
Pioneer
Foods
and
Metrorail
,
where the narrow interpretation was accepted. In
Metrorail
it
was effectively held that an arbitrary ground is nothing more and
nothing less than a ground analogous to a listed ground, as
contemplated in
Harksen.
The
crux of the test for unfair discrimination is the impairment of human
dignity or an adverse effect in a comparable, similar
manner and not
the classification of the ground as listed or unlisted. The
distinction between listed and unlisted grounds affects
only the
burden of proof. Differentiation on both a listed and analogous
ground amounts to unfair discrimination only if the differentiation
has indeed affected human dignity or has had an adverse effect in a
similar serious consequence.
[23]
[32]
Secondly, I am disinclined to follow
Sol
Plaatjie
insofar as it is authority for
the adoption of the wide interpretation. In
Sol
Plaatjie,
no reference is made to
Pioneer Foods
or
Metrorail
,
which adopted the narrow interpretation. The said judgments were
binding, unless considered clearly wrong, which they are not
and were
not considered to be.
[33]
Thirdly, the EEA does not prohibit
differentiation, it prohibits unfair discrimination.
[34]
More specifically section 6(1) of the EEA
does not prohibit differentiation, arbitrariness or arbitrary
discrimination; it prohibits
unfair discrimination on an ‘arbitrary
ground’. It prohibits discrimination through the phrase ‘or
on any other
arbitrary ground’ and not ‘any arbitrary
ground’. The wording of the section in this regard is
significant.
[35]
‘
Arbitrary
ground’ provided for in section 6(1), read in conjunction with
section 11(2),
[24]
makes it
clear that the irrationality of differentiation
per
se
will not win a discrimination case based on an arbitrary ground. The
conduct complained of must amount to unfair discrimination
in that it
must cause an injury to human dignity. Discrimination has to exist to
begin with before rationality is considered. Irrationality
does not
win a case, the irrationality of discrimination does.
[36]
Differentiation
per
se
does not constitute discrimination.
Differentiation on a specified ground of discrimination is presumed
to constitute unfair discrimination,
which presumption is
rebuttable.
Given that an arbitrary
ground is synonymous with an unlisted / unspecified ground, the test
for whether discrimination is established,
is that set in
Harksen
namely, if there is differentiation
based on an unspecified ground, then whether or not there is
discrimination will depend upon
whether, objectively, the ground is
based on attributes or characteristics which have the potential to
impair the fundamental dignity
of persons as human beings or to
affect them adversely in a comparably serious manner.
[37]
Although
the Constitutional Court did not provide a comprehensive description
of what ‘attributes and characteristics’
would comprise,
it held that:
[25]
‘
What
the specified grounds have in common is that they have been used (or
misused) in the past (both in South Africa and elsewhere)
to
categorise, marginalise and often oppress persons who have had, or
who have been associated with, these attributes or characteristics.
These grounds have the potential, when manipulated, to demean persons
in their inherent humanity and dignity. There is often a
complex
relationship between these grounds. In some cases they relate to
immutable biological attributes or characteristics, in
some to the
associational life of humans, in some to the intellectual, expressive
and religious dimensions of humanity and in some
cases to a
combination of one or more of these features.’
[38]
The
test set out in
Harksen
v Lane NO and Others
[26]
will
apply and in order for the alleged grounds of arbitrary
discrimination to qualify as such, they must, objectively, constitute
grounds
based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons as human
beings or to
affect them adversely in a comparably serious manner to a listed
ground. In short: the unequal treatment must be based
on attributes
and characteristics attaching to a person before it will fall within
the meaning of ‘discrimination’.
[39]
Fourthly,
the Explanatory Memorandum
[27]
in respect of adding the phrase ‘or any other arbitrary ground’
to section 6(1) of the EEA, explained that it was added
inter
alia,
to
bring section 6(1) of the EEA in line with the formulation of section
187(1)(f) of the Labour Relations Act
[28]
(LRA). In
New
Way Motor & Diesel Engineering (Pty) Ltd v Marsland
[29]
,
the Labour Appeal Court, when interpreting section 187(1)(f)
[30]
of the LRA, which provides for unfair discrimination on any arbitrary
ground, accepted that an arbitrary ground is one which has
the
potential to impair the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious
manner. I
can see no reason not to accept the same interpretation of the phrase
‘any arbitrary ground’ as provided
for in the EEA.
[40]
Lastly,
arbitrary or irrational differentiation
per
se
is
not elevated to discrimination and should not be interpreted in that
sense. ‘Arbitrary’ in itself is not a ground
of
discrimination and should section 6(1) of the EEA be interpreted to
in effect, include a general right to rational differentiation,
it
would have a sweeping effect on the employment landscape. The
differentiation tail should not wag the discrimination dog
[31]
.
The Applicants’
case
[41]
The first issue to be decided was the
meaning of ‘an arbitrary ground’ and as I have accepted
that the narrow interpretation
should be followed, the remaining
question is whether the Applicants’ pleaded case is based on
such a ground.
[42]
In summary, the Applicants’ pleaded
case is that wage disparities constitute wage discrimination on an
arbitrary ground and
that those wage disparities are capricious,
unfair, unreasonable and unjustifiable. The grounds for arbitrary
discrimination advanced
by the Applicants are nepotism, length of
service and employment by SAPS of the comparators as qualifying
criteria.
[43]
The question is whether these pleaded
grounds qualify as grounds of discrimination based on an arbitrary
ground.
[44]
Applying the
Harksen
test, for the Applicants pleaded
grounds of arbitrary discrimination to qualify as such, they must
show that it constitute grounds
based on
attributes
and characteristics which have the potential to impair their
fundamental human dignity or to affect them adversely in
a comparably
serious manner to a listed ground.
[45]
The Applicants cannot succeed as they
cannot show that the grounds of arbitrary discrimination, as per
their pleaded case, are analogous
to the listed grounds as they have
nothing to do with attributes or characteristics which make the
Applicants who they are and
they do not impair upon human dignity in
a comparable manner to a listed ground. The Applicants failed to
allege that the reason
for differentiation is some characteristic
that impacts upon their human dignity. They did no more than
attempting to describe
the difference in pay as ‘arbitrary’,
‘capricious’, ‘unfair’, ‘unreasonable’
and
‘unjustifiable’.
[46]
The gist of the Applicants’ case is
that the Respondent favoured members of SAPS by employing them,
instead of the Applicants,
at salaries higher than those earned by
the Applicants, despite their longer service with the Respondent.
Although the Applicants’
unhappiness with this reality is
understandable and notwithstanding the fact that the differentiation
in salary may be unfair or
irrational, it does not change the fact
that the grounds raised by the Applicant’s do not involve a
level of injury to human
dignity, comparable to a listed ground and
they do not constitute an arbitrary ground of discrimination.
[47]
The Applicants have failed to make the
minimum sufficient allegations to sustain a claim for unfair
discrimination within the meaning
of section 6(1) of the EEA.
[48]
In short, arbitrary conduct is not, in
itself, a ground of discrimination; only conduct based on a ground of
discrimination that
is arbitrary is actionable; and to be actionable,
the ground must be analogous to a listed ground.
Costs
[49]
This Court has a wide discretion to make
orders for costs according to the requirements of the law and
fairness and in my view this
is a matter where the interests of
justice and fairness will be best served by making no order as to
costs.
[50]
In the premises I make the following order:
Order
1.
The Respondent’s preliminary point is
upheld;
2.
The Applicants’ case is dismissed;
3.
There is no order as to costs.
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicants:
Advocate C de Kock
Instructed by:
Bagraims
Attorneys
For the
Respondent:
Advocate A Myburgh SC with Advocate A Montzinger
Instructed
by:
State Attorney
[1]
Act
55 of 1998, as amended.
[2]
(2016)
37
ILJ
2872 (LC).
[3]
Supra
n 2 at para 55, 56 and 59.
[4]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) (“
Harksen”)
.
[5]
Id
n 2 at paras 60-61.
[6]
Du
Toit
et
al
,
Labour
Relations Law
(6
th
ed, 2015) at 683.
[7]
(1999)
20
ILJ
373 (LC) at para 43.
[8]
De
Kock and Others v Van Rooyen
2005 (1) SA 1
(SCA) at para 17: “An 'obiter' pronouncement is
a judicial observation made in passing: one not necessary for the
decision
of the case. It is a stated thought that does not advance
the reasoning by which the outcome is reached.”
[9]
(2017)
38
ILJ
2565 (LC) (“
Metrorail
”)
[10]
Metrorail
at
para 34.
[11]
Metrorail
at para 93.
[12]
Metrorail
at
paras 94-98.
Kadiaka
dealt with item 2(1)(a) of schedule 7 to the LRA (now repealed),
which defined an unfair labour practice as unfair discrimination
“on
any arbitrary ground including, but not limited to race, gender,
sex, ethnic or social origin, colour, sexual orientation,
age,
disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility”.
[13]
Metrorail
at
para 103.
[14]
Metrorail
at
para 108.
[15]
Sethole
v Dr Kenneth Kaunda District Municipality
[2018]
1 BLLR 74
(LC) (“
Dr
Kenneth Kaunda
”).
[16]
Dr
Kenneth Kaunda
at para 84.
[17]
Dr
Kenneth Kaunda
at para 85.
[18]
Dr
Kenneth Kaunda
at para 72.
[19]
Prinsloo
v Van der Linde and another
1997 (3) SA 1012
(CC) at paras 26-27.
[20]
Chitsinde
v Sol Plaatje University
[2018] 10 BLLR 1012
(LC) (“
Sol
Plaatje University
”).
[21]
Sol
Plaatje University
at
para 31 and para 19 of this judgment.
[22]
Sol
Plaatje University
at
para 37 and 39.
[23]
Metrorail
at
para 73.
[24]
The
section provides: “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.”
[25]
Harksen
at para 50.
[26]
1998
(1) SA 300 (CC).
[27]
Explanatory
Memorandum to the 2012 Employment Equity Amendment Bill, published
in Government Gazette 35799 dated 19 October 2012.
[28]
Act
66 of 1995 as amended.
[29]
[2009]
12 BLLR 1181 (LAC).
[30]
The
section defines an automatically unfair dismissal as being where the
reason for dismissal is that “the employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including, but not limited to race, gender,
sex,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility”.
[31]
Christoph
Garbers and Peter le Roux “
Employment
Discrimination into the Future
”
(
www.saslaw.org.za
– conference – 2015 – papers).