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[2022] ZAEQC 4
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Pinto v Dimension Data and Others (EQ 3/2021) [2022] ZAEQC 4 (15 June 2022)
IN
THE EQUALITY COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: EQ 3/2021
Not
Reportable
Not
of interest to other judges
15
June 2022
In
the matter between:
Paul
Pinto
Complainant
And
Dimension
Data
First Respondent
Dimension
Data Group Provident Fund
Second Respondent
Old
Mutual
Third Respondent
Judgment
Vally
J
[1]
The complainant, Mr Pinto, has approached this Court for relief
against
a grievance he has with the first respondent, Dimension Data
(DD). He was an employee of DD from 1 April 2002 to 26 April 2018.
He
approaches this Court for relief against DD for unfairly
discriminating against him on the grounds of disability.
[2]
DD owned two insurance policies with the second respondent, Old
Mutual.
In terms of these insurance policies employees of DD stood to
be compensated for loss of income as a result of an occurrence of
a
certain event, such as becoming permanently unable to work, which is
referred to as a ‘disability event’. Thus, in
terms of
the policies each employee was classified as a ‘beneficial
owner’ while DD was classified as the ‘policy
owner’.
[3]
It is his contention that his employment should have been terminated
on
the ground that he became ‘permanently unable to work’.
As such a ‘disability event’, as defined in the
Long Term
Insurance Act 52 of 1998
, would have occurred and he would have
become eligible to apply for certain benefits and/or compensation
from Old Mutual in terms
of one or both of the policies. The benefits
and compensation would be a lump-sum payment upon being declared
‘permanently
unable to work’ (disability event) and
future monthly payments (income payments) thereafter for loss of
income. For him to
receive these, Old Mutual had to be notified of
the disability event and an application for the benefits had to be
lodged with
Old Mutual. This was not done and he has lost out on the
benefits. He is of the view that it was supposed to have been done by
DD and it omitted to do so. Its omission has prejudiced him. He
claims further that Old Mutual would have paid these amounts simply
because he was eligible for them.
[4]
The application is brought in terms of s 20(1)(a) of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
(Pepuda), ‘in terms of contract and in terms of delict’,
and in terms of the Constitution of the Republic of South Africa Act
108 of 1996 (the Constitution). More particularly, he claims
that the
omission by DD: (i) constitutes unfair discrimination as envisaged in
s 1(xxii)(a) of Pepuda; (ii) caused him to lose
a disability income
benefit in the amount of R8 562 366.00; (iii) caused him to
lose a disability lump sum benefit of
R731123.04; (iv) caused him to
lose his life savings of R752 449.26 which was for his
retirement but has now been used to
meet his day-to-day expenses; and
(v) infringed his right to inherent dignity as expressed in s 10 of
the Constitution and s 2
of Pepuda. Thus he seeks damages for claims
(i), (ii), (iii), (iv), and an apology for claim (v) the alleged
breach of his right
to dignity. The provisions of Pepuda are referred
to in claims (i) and (v) only.
[5]
DD opposes his claim for relief. It contends that the Equality Court
is
not jurisdictionally empowered to entertain the claims, as they
all fall outside the ambit of Pepuda.
The
jurisdiction of the Equality Court
[6]
This court is established by s 16 of Pepuda, which states that every
High
Court ‘is an equality court for the area of its
jurisdiction.’ At the same time it provides, in terms of s 23,
for
the High Court to sit in appeal against any decision of the
Equality Court. Thus, the High Court is superior to the Equality
Court.
The powers and functions of the Equality Court are restricted
to those conferred upon it by Pepuda.
[7]
Pepuda
prohibits unfair discrimination on a number of identified grounds
such as, amongst others, race, gender, sex, sexual orientation,
disability or age (identified grounds). It allows a person who claims
to be a victim of such discrimination to approach the Equality
Court
for relief. The Employment Equity Act, 55 of 1998 (EEA) also
prohibits unfair discrimination on the basis of the same identified
grounds. The EEA is focused on the employment contract and is
therefore applicable to employers such as DD, and employees such
as
Mr Pinto. The EEA provides for employees who allege discrimination on
the grounds of,
inter
alia
,
disability to approach the Commission for Conciliation and
Arbitration (CCMA) for relief through the process of conciliation.
If
the employee fails to secure relief at the CCMA, s/he has the option
to approach the Labour Court for relief.
[1]
[8]
This overlap in the two statutes has made it necessary for the
legislature
to provide some clarity as to where an employee aggrieved
for allegedly being unfairly discriminated against should go for
relief.
This it has done. In terms of s 5(3) of Pepuda, Pepuda ‘does
not apply to any person to whom and to the extent to which the
[EEA]
applies.’ Such a person is to utilise the procedures and the
fora
set out in the EEA to secure relief for the alleged
unfair discrimination. At the same time the Labour Relations Act 66
of 1995
(LRA) also ensures that the overlap is addressed. Section
157(1) of LRA provides that:
‘
Subject to the
Constitution and section 173, and except where this Act provides
otherwise, the Labour Court has exclusive jurisdiction
in respect of
all matters that elsewhere in terms of this Act or in terms of any
other law are to be determined by the Labour Court.’
Hence,
the EEA confers jurisdiction for a claim for unfair discrimination on
the Labour Court and the LRA ensures that no other
court has
jurisdiction over such matters.
[9]
Thus, Pepuda prevents the Equality Court from having jurisdiction
over
the claim, while the EEA read with the LRA ensures that the
Labour Court is empowered to attend to the claim. A claim that,
absent
an employment relationship, should have been brought in terms
of the provision of Pepuda can now, because of the employment
relationship,
be brought in terms of the EEA. In the former case, the
aggrieved person has to approach the Equality Court and in the latter
case,
the Labour Court. The aggrieved person is therefore able to
secure relief from a competent court of law.
[10]
Mr Pinto says that he brings most of his claims in terms of contract
and delict. The contract
he relies upon is a contract of employment.
For that the EEA and the LRA apply. They therefore have to bring it
in the Labour Court.
Insofar as relying on the law of delict, his
claims must still be brought in the Labour Court, for his employment
contract is relied
upon to prove one of the elements of the delict:
the unlawfulness of the alleged omission by DD.
[11]
Mr Pinto contends that the EEA does not apply to his claim because he
was dismissed before
he brought his claim. The error in this
contention is that his claims arise from his employment relationship.
That the employment
relationship ended does not detract from the fact
that his rights to the disability benefits and disability lump-sum
payment arose
during his employment relationship and are part of his
employment contract. The demise of that contract did not result in
the destruction
of his rights against unfair discrimination on the
grounds of disability as an employee. Those rights remained intact
and their
infringement gave him a right to seek relief in terms of
the EEA and the LRA. His contention is that he became medically unfit
to perform his duties as an employee of DD, and as a result qualified
to be medically boarded and be accordingly compensated in
terms of
the insurance policies that were available to him as an employee of
DD. The termination of this employment contract did
not eviscerate
his right to claim for the harm caused to him – the unfair
discrimination he was subjected to – while
he was an employee.
[12]
The Equality Court therefore is not jurisdictionally empowered to
entertain his dispute.
[13]
Order
a.
It is declared that the Equality Court is not jurisdictionally
empowered to entertain
the applicant’s complaint.
Vally
J
[1]
The Labour Court is court of equivalent status to that of the High
Court. Hence, the Labour Court enjoys a status higher than
that of
the Equality Court.