About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 209
|
|
Maraba and Others v Tshwane University of Technology (JS1032/12) [2019] ZALCJHB 209 (23 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JS 1032/12
In
the matter between:
PAUL
MARABA AND 2 OTHERS
Applicants
And
TSHWANE
UNIVERSITY OF TECHNOLOGY
Respondent
Heard:
19 to 21 November 2018
Judgment:
23 August 2019
JUDGMENT
MABASO, AJ
Introduction
[1] In
an attempt to mend the scars of apartheid, which had
inter alia
,
excluded promoting staff equity, an Act of parliament was passed to
merge three tertiary institutions namely Pretoria Technikon,
Technikon Northern Gauteng based in Soshanguve and Technikon
North-West based in Ga-Rankuwa. Both the latter were based in the
townships and dominated by Black people.
[2] As
a result of the previous dispensation in the higher education system,
some employees
within the three former institutions were earning more
than others despite doing the same job, especially in the nursing
departments.
In its attempt to correct this disparity, the respondent
appointed Mr Jim Steer (Mr Steer) of Deloitte and Touché to
conduct
an evaluation and make recommendations. Mr Steer made the
recommendation that the salaries of those employees of all these
former
institutions who were earning more than others should be
capped (meaning that they should not receive salary increases in
their
respective notches until there is parity). The respondent's
management and the trade unions (NEHAWU and NETUWA) accepted the
recommendations
and agreed that the salaries of high earners were to
be capped (the Agreement).
[3] According
to the respondent's only witness, Ms M Van Heerden, the purpose of
capping
was:
"so
that other people that was on an equal base that they grow into and
catch up with the person that has is earning a higher
salary so that
they at
some
stage
[1]
catch
up and become equal to salaries and then that is why this person is
capped so that they do not get increase
".
In
a way, this purpose was on par with the preamble of the Employment
Equity Act
[2]
(EEA) which
recognizes that there are disparities in the employment and income
sphere and calls for the elimination of unfair discrimination
in
employment and ensures that the implementation of employment equity
addresses the effects of discrimination.
[4] Shortly
after the Agreement, there were salary increase negotiations between
the respondent
and labour. Amazingly, the unions used the capping
issue in order to agree to a percentage increase proposed by the
respondent,
as a spin-off. As a result, the respondent scrapped the
capping, meaning that those who were due for notch increments were to
continue
to get increases, which means that there was no plan in
place to correct salary disparities which existed. This Court was
advised
by Ms Van Heerden that "
it was a mistake to lift the
capping
"
.
Can this mistake lead to unfair
discrimination based on social origin and/or race? This is the
question that is answered in this
judgment.
[6] The
applicants, Mr Paul Maraba (Mr Maraba), Ms Lydia Khwinana (Ms
Khwinana), and Ms
Matilda Legwale (Ms Legwale), at the time of
instituting this claim were employed by the respondent as
Professional Nurse
Practioners. The applicants instituted a claim in
terms of section 10 of the EEA against the respondent. This
application is opposed
by the respondent, which is represented by
Advocate Gerber, whereas the applicants are unrepresented.
Preliminary point
[7] Advocate
Gerber submitted that the first applicant signed the statement of
case and
therefore the other two applicants are not properly before
this Court as according to him, the other applicants must co-sign the
same statement of case. This point cannot stand, in that the
affidavits by both Ms Khwinana and Ms Legwale are in support of the
same statement of case signed by Mr Maraba, therefore, not physically
attaching signatures to the statement of case cannot be a
ground for
drawing an inference that they are not before this Court. Under the
circumstances, the point that the further applicants
are not before
this Court is dismissed.
Relevant pleadings and
evidence
[8] In
December 2012, the applicants delivered a statement of case, wherein
they claim
unfair discrimination. The relief sought, in paragraph 9
of the statement of case, was that
"the applicants' salary
scales moved to scale 8 from 9 accordingly with other practitioners
doing work of comparable worth".
The respondent moved for an
application for an exception and to strike out paragraphs 7 and 8 of
the statement of case. The matter
was set down for hearing on 7
August 2013 and this Court held that the statement of case was vague
and embarrassing in that it
failed to disclose the basis on which the
applicants alleged that they were discriminated against. The Court
proceeded to strike
out paragraphs 7 and 8 of the statement of case.
The applicants were given an opportunity to amend their statement of
case.
[9] At
some stage, the applicants brought an application for joinder which
was set down
for hearing on November 2014, and later they withdrew
that application.
[10] On
5 September 2013, the applicants delivered an application to amend
the statement of case, and
that application was set down on 26
November 2013 where the Court struck out the amended statement of
case. The applicants were
given an opportunity to re-file the
amendment to the statement of case within 14 days from 26 November
2013. The matter was set
down for hearing for 4 February 2016 however
it was removed from the roll, and the Registrar was directed to
afford the matter
preference and costs were reserved. On 20 February
2017, the matter came before this Court again, and on this date, the
referral
was dismissed with costs as the applicants did not appear.
This latter order was rescinded on 25 April 2017, and the Registrar
was directed to re-enroll the matter.
[11] As
paragraphs 7 and 8 of the statement of case were struck out, as
stated hereinabove, the applicants
proceeded to deliver an amended
statement of case wherein paragraph 7 states that the respondent
unfairly treats them as a result
of the merger of Pretoria Technikon,
Technikon Northern Gauteng and the Technikon North-West. In that,
"7.4
Pretoria Technicon was formerly a white
institution catering mostly for affluent few whilst the other two,
namely Technikon North-West
and Technikon Northern Gauteng
were
under-resourced
and
catering
only for the indigent black students
."
…
7.6
The resources by definition should include
human as well material
.
This
did not happen with the nursing staff (a human resource)
.
7.7
The nursing staff from previously well
resourced and advantaged Pretoria Technikon remained higher on
salaries scale and benefits
than the nurses from historically
disadvantaged institutions thereby perpetuating historical and
apartheid divide
."
7.8
This matter was brought to
the attention of the University management by the union NUTESA as ADS
19 October 2006, and the University
management responded by promising
those salary differentials would be harmonised immediately after the
process of the match in
place is completed. This process was
completed in 2007, and the issue of harmonisation of salaries from
the previous advantaged
institutions compared to previously
disadvantaged institutions is still persistent up to this day
.
This shows the utter disregard for the laws of this country inclusive
of the respondent on policy guidelines on employment equity
and
anti-discrimination laws.
7.9
The
designated group suffered discrimination and exclusion almost
uniformly by the respondent's perpetuation of historical
discrimination
and disadvantage simply
due
to their social origin
."
[3]
[12] During
the opening statement, Mr Maraba stated that their case is based on
social origin and their
point of reference was that one Ms Sarina
Kloppers was previously employed by the
"formerly white,
purely white institution and the respondent maintained the benefits
and privileges of this comparator compared
to the applicants"
.
[13] As
the applicants alleged discrimination relating to race and/or social
origin, the respondent
then has the onus of proof. Section 11 (2) of
the EEA provides that when a party has alleged that the dispute
relates to discrimination
on listed ground, then the other party
bears the onus of proof, as the section provides that: Burden of
proof.-(1) If unfair discrimination
is alleged on a ground listed in
section 6 (1), the employer against whom the allegation is made must
prove, on a balance of probabilities,
that such discrimination—(a)did
not take place as alleged; or(b)is rational and not unfair, or is
otherwise justifiable.
[14] It
is common cause between the parties that, prior to the merger of
these three institutions,
salary levels were different. There was
capping in that those employees who were on a higher level scale
prior to the merger would
not get a salary increase until there is
some parity. However, they were to continue to earn more than others.
[15] The
respondent's witness, Ms Maria Van Heerden (Ms Van Heerden), is
employed as a Director in
the Human Resources Department of the
respondent. The respondent was established as a result of the Act of
parliament promulgated
by the Department of Education in terms of the
Higher Education Act
[4]
.
[16] Part
of the instruction from the Department of Education was that
employees should be incorporated
and integrated into a new structure.
That employees would not lose their jobs, and that this should be
done through consultation
with all stakeholders, where an agreement
had to be reached in respect of the newly designated structure.
Extensive consultation
with all stakeholders was done, and a plan was
invented, and timelines in respect of the implementation were agreed
upon.
[17] The
evaluations were done by Mr Steer, and he sent his report to Ms Van
Heerden. One of the jobs
evaluations that were conducted was that of
the Professional Nurse, which was post level 9. As a result of the
new structure, those
who were earning more in their previous
positions, had their salaries capped, as none of the salaries were
changed. This evidence
indicates that those who were earning more
would continue to earn more, and those who were earning less: were to
continue earning
less as there would be adjustments in their salaries
when notches were to be annually adjusted.
[18] Ms
Van Heerden further stated that irrespective of the position that an
employee occupied at a
previous institution, for instance, before the
merger if an employee was a nurse at Soshanguve, Ga-Rankuwa or
Pretoria they were
placed on the post of the Professional Nurse which
is level 9.
[19] Ms
Van Heerden confirmed that all the applicants were placed at post
level 9, the second applicant
was to be placed at Soshanguve, the
third applicant placed at Ga-Rankuwa, and the first applicant at
Garankuwa campus. Mrs Kloppers
(the comparator) is based in Pretoria.
She was at level 8, which was a higher position before the merger,
however, as the new structure
did not have a level 8, she had to be
demoted to level 9 without her salary being changed as it was an
agreement with organised
labour that they would not lower any
person's salary, but that it had to be capped.
[20] She
confirmed that at the time of the merger, on 19 November 2008, every
person that was employed
by the three previous institutions received
placement letters confirming their new positions. For example, Ms
Kwinana was placed
as a Professional Nurse post level 9, and she was
placed at Soshanguve. In respect of Ms Legwale, the date of
appointment was 19
May 2010 and she was appointed as a Professional
Nurse at post level 9 based at the Ga-Rankuwa campus. Mr Maraba was
also appointed
for the position in post level 9.
[21] Mrs
Kloppers, prior to the merger, was on post level 8 based in Pretoria.
Because level 8 was
a higher position after the merger, she was
issued with a letter dated 19 November 2008 advising that she was
placed in the Professional
Nurse post level 9, however, because in
her previous position she was earning more and she was advised that
her salary was to be
capped. Ms Van Heerden further testified that
following the consultation with the parties involved "
[they]
had an agreement with organised labour that will not lower anybody's
salary [they] had to cap the salary. That was the agreement"
[22] Mrs
Kloppers was not the only employee whose salary was capped. This
witness further gave the
example of one Mr Basini who before the
merger was based at the Soshanguve campus, his salary was also
capped, and is also a black
person like the applicants. She explained
that before the merger, Mr Basini was at post level 6, and when he
was placed in the
post level 9, he kept his salary. However, Mr
Basini is not employed as a Professional Nurse, like the applicants
and Mrs Kloopers,
but as a Co-ordinator.
[23] Ms
Van Heerden stated that as a result of the formation of the
respondent, the Commission for
Conciliation, Mediation and
Arbitration (CCMA) office in Pretoria was inundated with cases from
the respondent, from those whose
salaries were capped, which resulted
in the CCMA appointing a senior commissioner, Commissioner A P
Venter, to assist and the primary
purpose was to deal with these
cases from the respondent. Commissioner Venter made recommendations,
in a form of an advisory award,
to the Council and the Executive
Management of the respondent to uplift the capping. NEHAWU and NTEU
represented the aggrieved
employees. Commissioner Venter's
recommendation about the uncapping would be implemented on 1 April
2011, with no back pay.
[24]
The respondent's Executive Management Committee, which was headed by
acting Vice-Chancellor:
Professor John Molefe, implemented this
recommendation. Now, this meant that those whose salaries were capped
were going to get
the notches and increases as normal as they did
previously and that “
at some stage catch up and become equal
to salaries”
purpose was not going to apply anymore.
[25] At
this juncture, it is essential to note that the respondent
acknowledges that there is a salary
differentiation which emanates
from
"the mistake"
.
[26] The
respondent in its heads of argument submitted that the idea of the
capping is a good human
resource practice, as a result of this
exercise numerous grievances were lodged with the CCMA which amounted
to labour unrest.
It further submitted that the capping of salaries
was a good business decision given the situation that the respondent
found itself
in at the time, which resulted in instability to the
respondent and was
"for the benefit of all
". It
further submitted that as a result of the labour unrest within the
respondent, the uncapping had to be done. Moreover,
according to the
respondent, this was an exceptional circumstance justifying the
deviation from the principle that all people in
the same post should
earn the same salary and therefore, it is not discriminatory.
Legal principle and
application thereof
[27] It
is necessary at this juncture, to reiterate that the applicants’
claim is based on the
position of Professional Nurse as they allege
that they are not earning the same salary with the comparator and
aver that this
is as a result of social origin which is a listed
ground in terms of section 6 (1) of the EEA, which provides that,
“
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. "
[28]
The EEA defines employment policy or practice thus
:
"includes, but is
not limited to—
(a) recruitment
procedures, advertising and selection criteria;
(b) appointments and the
appointment process;
(c) job classification
and grading;
(d)
remuneration,
employment benefits and terms and conditions of employment
;
(e) job assignments;
(f) the working
environment and facilities;
(g) training and
development;
(h) performance
evaluation systems;
(i) promotion;
(j) transfer;
(k) demotion;
(l) disciplinary measures
other than dismissal; and
(m) dismissal.”
[29]
Langa
CJ, writing for the majority, in
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (2) SA 363
;
1998 (3) BCLR 257
held that:
"This
Court has consistently held that differentiation on one of the
specified grounds referred to in section 8(2) gives rise
to a
presumption of unfair discrimination. The presumption which flows
from section 8(4) applies to
all
differentiation on such grounds
".
[5]
[30]
Moseneke
DCJ, in
South
African Police Service v Solidarity obo
Barnard
[6]
,
reiterated that:
"remedial measures
must be implemented in a way that advances the position of people who
have suffered discrimination."
[31] The
Constitutional Court
[7]
,by
Langa
DP
writing for the majority, in an unfair discrimination dispute
signposted thus,
"Courts should
however always be astutely to distinguish between genuine attempts to
promote and protect equality on the other
hand action is calculated
to protect pockets of privilege enterprise which amounts to the
perpetuation of inequality and this advantage
to others on the other
hand
And
The
inclusion of both direct and indirect discrimination within the ambit
of the prohibition imposed by section 8 (2) evinces a
concern for the
consequences rather than the form of conduct."
[8]
[32] It
must be emphasized that the applicants are alleging unfair
discriminatory grounds which are
specified, as contained in section 6
(1) of the EEA as they contend that they were being discriminated
against based on their social
origin because Ms Kloppers was from a
well-resourced institution, the then Pretoria Technikon as they are
from previously less
disadvantaged institutions which formed the
respondent. Further, the applicants are explicitly concerned with the
particular position,
which is of a Professional Nurse. As stated
above, the minute unfair discrimination is alleged based on a
specified ground and
the employer who is being accused of
discrimination has the onus to proof that either no discrimination
took place, and/ or such
discrimination is justified.
[33]
In
casu
, the respondent submits that there was differentiation and
that such differentiation is justified because it is intended to
maintain
labour unrest because of the complaints that were coming
from those employees whose salaries were capped and this uncapping
process
was used by the unions in order to reach salary negotiations
which were on the table at that time.
[34] If
one were to accept, as argued by the respondent, that the decision to
uncap salaries of those
who were earning more should be classified as
"
exceptional circumstances"
and that it was for the
benefits "for all", this triggers a question of whether
those who were earning more
"are those
people who have
suffered discrimination"
. The answer to this question is no.
Therefore, the action that was taken by both the unions and the
respondent, which was implemented
by the latter, cannot be classified
as a justifiable ground of discrimination. Under those circumstances,
the respondent unfairly
discriminated against the applicants based on
remuneration as a result of their social origin because their former
institutions
were previously based in the historically disadvantaged
institutions which were under- resourced, as the respondent failed to
present
a justifiable ground for its conduct. The respondent's action
amounts to
"perpetuation of inequality and this advantage to
others on the other hand
". However, I conclude that
discrimination based on race is not founded under the circumstances
and the facts of this case.
[35] In
respect of the relief, the respondent’s representative argued
that recourse is not a
prayer in the statement of claim, and this
argument is also recorded in the pre-trial minute that was filed in
this Court on 4
February 2016. I reject this argument taking into
account that on paragraph 9 of the statement of case, and the second
pre-trial
minute, there is a clear recourse sought by the applicants.
In the pre-trial minutes, the applicants do not seek compensation but
also seek payment of a difference between the sum they have not
earned and the salary earned by Mrs Kloppers,
pro-rata
to
their starting dates and placed on the same scale. As parties
recorded in the second pre-trial minute, I conclude that there
is a
relief asked for in this matter. Also, the affidavits of both Ms
Khwinana and Ms Legwale the relief sought is clear.
[36] Further,
this Court has remedial powers in terms of section 50 (2) of the EEA
to make any appropriate
order that is just and equitable including
payment of damages by the employer to the employee concerned, payment
of compensation,
ordering such to take steps to prevent unfair
discrimination or similar practice.
[37] Since
there is no definition of what is "just and equitable" in
the EEA, I propose to
use the Constitutional Court judgment which
indicates that a presiding officer has a broad and flexible
discretion as it was held
in
Economic
Freedom Fighters and Others v Speaker of the National Assembly and
Another
[9]
that,
"[211] The power to
grant a just and equitable order is so wide and flexible that it
allows courts to formulate an order that
does not follow prayers in
the notice of motion or some other pleading. This power enables
courts to address the real dispute between
the parties by requiring
them to take steps aimed at making their conduct to be consistent
with the Constitution. In
Hoërskool Ermelo
Moseneke DCJ
declared:
"A just and
equitable order may be made even in instances where the outcome of a
constitutional dispute does not hinge on constitutional
invalidity of
legislation or conduct. This ample and flexible remedial jurisdiction
in constitutional disputes permits a court
to forge an order that
would place substance above mere form by identifying the actual
underlying dispute between the parties and
by requiring the parties
to take steps directed at resolving the dispute in a manner
consistent with constitutional requirements.
In several cases, this
Court has found it fair to fashion orders to facilitate a substantive
resolution of the underlying dispute
between the parties. Sometimes
orders of this class have taken the form of structural interdicts or
supervisory orders. This approach
is valuable and advances
constitutional justice particularly by ensuring that the parties
themselves become part of the solution."
[38] In
respect of the relief, below, I have taken into account
inter alia
that two of the applicants are no longer employed by the
respondent, that the respondent was perpetuating a discriminatory
conduct,
which goes against the principle of eliminating unfair
discrimination in employment, that the respondent has not presented
a
valid justifiable ground for such discrimination, therefore its
conduct failed to mend the scars of apartheid in respect of
Professional Nurse Practitioners.
[40]
I, therefore, make the following order:
Order
1.
The
respondent’s conduct of paying the applicants less remuneration
than Ms Kloppers was earning from 01 April 2011 to date
constitutes
unfair discrimination based on social origin.
2.
The
respondent is ordered to retrospectively increase the salaries
of the applicants to be the same as that earned by Ms Kloppers
since
01 April 2011.
3.
The
salaries of those applicants who are no longer employed by the
respondent must be retrospectively increased from 01 April 2011
to
the date of the termination of the employment with the respondents.
4.
The
respondent must pay the abovementioned retrospective increases to the
applicants within 30 days of this order .
5.
In
the event there is any dispute about the quantification of the
retrospective increases any party may refer that dispute to this
Court for determination.
6.
There
is no orders as to costs.
_______________________
S. Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants: In person
For
the Respondent: Advocate Gerber
Instructed
by:
Clarida Kugel Attorneys
[1]
Court underlining and bolding.
[2]
Act
55 of 1998.
[3]
Court underlining and bolding.
[4]
Act
101 of 1997.
[5]
Grounds of the then section 8(2) of the Constitution are the same as
the ones in section 6(1) of the EEA.
[6]
2014
(6) SA 123
(CC);
[2014] 11 BLLR 1025
(CC);
2014 (10) BCLR 1195
(CC);
(2014) 35 ILJ 2981 (CC) at para 32.
[7]
Fn 5 above.
[8]
See also Kristin Henchard in her book titled Minority Protection in
Post-Apartheid South Africa.
[9]
2018
(3) BCLR 259
(CC).