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[2019] ZALCJHB 44
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Dayimani v National Department of Health and Another (JS753/18) [2019] ZALCJHB 44 (5 March 2019)
the
labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no:
JS
753/18
In
the matter between:
VUKILE
SOLOMON
DAYIMANI
Applicant
and
NATIONAL
DEPARTMENT OF HEALTH
First Respondent
S
A HEALTH PRODUCTS REGULATORY
AUTHORITY
Second Respondent
Heard
:
26 February 2019
Delivered
:
05 March 2019
Summary:
An application for default judgment, wherein the applicant seeks
an order for unfair discrimination and payment of salary difference
for a certain period as well as accommodation costs. Held: (1) The
claim for unfair discrimination is hereby dismissed (2) The
applicants’ claim for breach of contract is thus dismissed (3)
No order as to costs.
judgment
MOSHOANA,
J
Introduction
[1]
This matter came before me for default judgment. The applicant
alleged
discrimination within the contemplation of section 6 (4) of
the Employment Equity Act (EEA). For some unknown reason, the
respondents
failed to oppose the referral. In addition, the applicant
brought a section 77(3) of the Basic Conditions of Employment Act
(BCEA)
claim seeking to be paid relocation costs in terms of a clause
in the letter of offer of employment.
Evidence
Led
[2]
Owing to the fact that the application came for default judgment, I
only heard evidence
from the applicant. Briefly, the applicant
testified that he applied for a position that was advertised as being
levels 10 –
13 post. On 30 October 2017, he attended an
interview. On 4 January 2018, he was telephonically advised that he
was successful.
Later on, he received a written offer for the post he
applied for. He was to indicate within 10 days of the offer whether
he was
accepting or not. If the offer was not accepted within the
stipulated timeframe, it was to lapse. He did not accept the offer,
instead he made a counter offer. His counter offer was to be paid at
level 11 or 12. This counter offer was according to him accepted
by
the Chief Executive Officer (CEO) of the second respondent
telephonically. On 5 February 2018, he assumed duties, however he
noticed that his salary level was at 10, as offered before, as
opposed to 12 as accepted by the CEO.
[3]
He then raised a complaint with the CEO, who advised that she will
write a memorandum to
the Human Resources Department. Indeed, on 7
March 2018, the CEO wrote a submission to the Directorate HRM&D.
On 13 March 2018,
a written response was provided by the Directorate
not supporting the request by the CEO. On 14 May 2018, the applicant
lodged
a grievance in writing seeking salary adjustment to level 12
and the resettlement costs and benefits. The respondents failed to
resolve the grievance. He then referred a dispute to the Commission
for Conciliation, Mediation and Arbitration (CCMA) alleging
unfair
discrimination. On 24 August 2018, the CCMA failed to resolve the
dispute. He approached this Court for relief.
Evaluation
[4]
The ground upon which the applicant claims unfair discrimination is
that
of being arbitrary and not on any of the listed grounds. In
terms of section 11 (2) of the EEA, the applicant bears the onus of
proof. On this part of the case, the conduct complained of is that
the applicant was offered salary level 10, when the previous
incumbents were on salary level 12. In the statement of case an
allegation was made that by denying the applicant a correct salary,
he was discriminated on the ground of social origin, one of the
listed ground. There is no credible evidence to substantiate this
allegation. On the applicant’s own version, he initially
declined the offer, hence the counterproposal. A counter offer is
equivalent to a rejection of the initial offer. Therefore, in law,
there is no offer and acceptance to give rise to a contract.
After
his counter proposal was rejected, it is clear that the applicant
accepted the situation. There is no evidence before me
that seeks to
show that there was any form of discrimination on the basis of social
origin.
[5]
The applicant takes issue with the statement that in his previous
employment
with KZN Department of Social Development he was
remunerated at salary level 8. It is on this basis that he alleges
discrimination
on the ground of social origin. I am not satisfied
that there is any evidence to suggest unfair discrimination.
Returning to the
salary scale complaint, item 4.4 of the Code of Good
Practice on Equal Pay/Remuneration for work, states that when
examining whether
the obligation to apply pay/remuneration equity in
the workplace is being complied with, three key issues require
scrutiny and
those are:
1. Are the jobs that
are being compared the same, substantially the same or of equal value
in terms of objective
assessment?
2. Is there a
difference in the terms and conditions of employment, including
pay/remuneration, of the employees
in the jobs that are being
compared?
3. If there are
differences in the terms and conditions of employment, can these be
justified on fair and rational
grounds?
[6]
On the evidence before me I am unable to even begin to consider the
key
issues. Reference is made to previous incumbents being paid at a
Deputy Director level for the same work. This cannot allow me to
do
an objective assessment. Basically, there is no comparator. The
evidence is simply too shallow to enable the court to perform
an
objective assessment. I cannot simply take the subjective view of the
applicant. Accordingly, I am not satisfied that there
is any
irrationality on the part of the respondent nor was one shown to
exist. Therefore, the claim for unfair discrimination based
on an
arbitrary ground must fail.
[7]
I shall now deal with the claim for resettlement costs and benefits.
On
this part of the case, the applicant is claiming the two days’
accommodation costs and the travelling costs. The applicant
pegs his
claim on paragraph 2.8.1 of the offer made to him. In terms of the
clause, the interim accommodation is a benefit that
could be utilized
after making a request at least three weeks before. The first
difficulty with the applicant’s case is that
he did not accept
the offer made to him. After discussions with the CEO, he made a
decision to travel to Pretoria in order to resume
duties. In terms of
clause 5.2, the applicant was to accept in writing. There is no
evidence that he did so. For all intents and
purposes, the offer
inclusive of the benefit lapsed after the 10 days’ period.
Assuming that the benefit has not lapsed,
it is required that the
request for the benefit must be made three weeks before it can be
utilized. The applicant made a request
on 20 March 2018, after he had
used the “benefit” on 04 and 05 February 2018. Based on
these reasons, I am not satisfied
that the applicant has a claim
arising from clause 2.8.1. Accordingly, his claim must fail.
[8]
It is unclear on what does the applicant base his travelling claim.
The
applicant completed a travel and subsistence claim form on 18
March 2018. This claim appears to have been approved by the Acting
CEO on 18 April 2018. On 05 April 2018, the applicant claimed in
respect of an official journey undertaken by privately owned motor
transport. This claim was not approved, nor is there any evidence
that it was approved. It is apparent that this is a claim in
terms of
some policy of the employer. Failure to pay it may be an unfair
labour practice. This court lacks jurisdiction to entertain
this type
of matters. Accordingly, this travelling claim before this court must
fail.
[9]
In summary, I am not satisfied that the applicant is entitled to any
judgment
by default. There is no credible evidence to support an
allegation of unfair discrimination. The claim for relocation and
travel
costs has not been substantiated.
[10]
For all the above reasons,
I make the following
order:
Order
1.
The applicant’s claim for unfair
discrimination is dismissed;
2.
The claim for breach of contract is also
dismissed;
3.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant: In Person.