IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2354/18
In the matter between:
AMOS NKOSI AND ANOTHER Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
SIBONGISENI SITHOLE N.O Second Respondent
BARLOWORLD Third Respondent
Heard: 26 February 2025
Delivered: 25 March 2025
Summary: Unopposed application – review of arbitration award dismissing
applicants’ referral of unfair discrimination claim – Applicants claimed they were
discriminated against based on arbitrary grounds – Equal pay for work of equal value
– Commissioner ruled that an arbitrar y ground had to be analogous to the grounds
listed in section 6(1) of the Employment Equity Act and dismissed the referral due to
a failure by the applicants to advance an analogous ground.
2
JUDGMENT
MKWIBISO, AJ
Introduction
[1] In this matter the applicant s (Messrs Amos Nkosi and Siyabulela Miya ) seek
an order reviewing and setting aside an arbitration award rendered by the second
respondent (the Commissioner) , dismiss ing their referral of an unfair discrimination
claim to the first respondent (the CCMA) .
[2] In the award, the Commissioner found that the applicants’ discrimination claim
was based on an alleged arbitrary ground, and an arbitrary ground had to be
analogous to one or more of the listed grounds in section 6(1) of the Employment
Equity Act
1. The Commissioner found that the applicants had failed to allege a
ground of discrimination that was analogous to the grounds listed in section 6(1) of the Employment Equi ty Act.
[3] The review application, which was filed many months out of time, complains
that the Commissioner committed an irregularity.
Relevant facts and evidence
[4] The two applicants were employed as a General Mechanic earning a salary of
R15 786.25 and a Spray Painter earning a salary of R8 765.91, respectively .
[5] On 15 December 2016, the applicants referred their dispute to the CCMA .
Their referral form requesting conciliation of the dispute summarised the facts of the dispute as follows: “ the employer is paying the employees who are doing the same
job differently ”. The result they required was: “ to be paid equal salaries as the other
employees who are doing the same job (salary adjustments) ”.
1 Act 55 of 1998.
3
[6] The matter was scheduled for arbitration on 29 May 2017. On that date, both
applicants were present. The third respondent ( the employer) was not in attendance
and t he arbitration proceeded in the absence of the employer.
[7] During the arbitration hearing, the Commissioner asked the applicants to
explain their claim, and they informed him that they were being discriminated against on arbitrary grounds because they were doing the same work as their colleagues
who occupied positions similar to theirs but they were paid less remuneration. The
Commissioner then referred them to section 6(1) of the Employment Equity Act and
asked them to identify the ground they were relying on. He said the arbitrariness the
applicants were complaining about had to be similar to a specific listed ground. The
applicants advised the Commissioner that they did not know why they were being discriminated against, and the employer was the one who could explain the basis of
the discrimination. The Commissioner also asked the applicants to state the
colleagues they were comparing themselves to, and they did so.
[8] On 8 June 2017, the Commissioner issued his award stating, inter alia , that
“the applicants have not ascribed the differential treatment in question, to any ground
analogous to the listed grounds in section 6(1) of the EEA”. He further stated that “the applicants have failed to allege that the reason for the differentiation is some
characteristic that impacts upon their human dignity ”. As a result, the Commissioner
found that the applicants had failed to make sufficient allegations to sustain their claim of discrimination, within the meaning of section 6(1) of the Employment Equity
Act.
[9] The applicants launched a review application challenging the Commissioner’s
award, which appears to have been filed on 6 August 2019, long after the 6 weeks
deadline envisaged in section 145 of the Labour Relations Act
2. By order dated 3
December 2019, the applicants were directed to apply for condonation for the late filing of the review application. On 13 December 2019, the applicants applied for
condonation, alleging that they did not challenge the outcome of their case timeously
2 Act 66 of 1995, as amended.
4
because they were waiting for the outcome of another arbitration concerning their
colleagues and it was only after t hat case was dismissed that they decided to pursue
their review application. They alleged that their review application was 16 months out
of time.
Analysis
[10] The issue is whether condonation for the late filing of the review application
should be granted. In determining this issue, regard must be given to the degree of
delay, the explanation for the delay, the prospects of success and the general interests of justice.
[11] On their own version, the applicants’ review application was launched 16
months out of time. This is a significant delay.
[12] The explanation for the delay is not reasonable. The applicants contend that
they waited for the outcome of another arbitration hearing in which they were not parties, involving a similar dispute. They believed they would benefit if the outcome
of that arbitration hearing was in favour of the employees in that case who were their
colleagues . It is not clear how they envisaged benefit ing in law from litigation in
which they were not part ies. They should have rather pursued their review
application timeously and then withdrawn it in the event that they ended up
benefiting from some other litigation in which they were not parties.
[13] Even if the explanation for the delay was valid, t he prospects of success are
not good at all , for the reasons set out below.
[14] With effect from 1 August 2014, sections 6(1) and (4) of the Employment
Equity Act were amended to read as follows:
‘(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
5
status, consci ence, belief, political opinion, culture, language, birth or on any
other arbitrary ground.
…
(4) 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. ’
[15] Section 11 of the Employment Equity Act provides that:
‘(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.
(2) 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. ’
[16] In Naidoo and o thers v Parliament of the Republic of SA
3 (Naidoo) , the
Labour Appeal Court dealt with the proper interpretation of sections 6(1), 6(4) and 11
of the Employment Equity Act. The Court observed that the issue was whether the
“narrow ” or “broad” interpretation of the words “ any other arbitrary ground” in section
6(1) of the Employment Equity Act should prevail. The “ narrow ” interpretation
required that the words “any other arbitrary ground” be limited to a ground that is
analogous to the grounds that are specifically listed in section 6(1) of the
Employment Equity Act, whilst the “ broad” interpretation required the words “ any
other arbitrary ground” to be a stand- alone ground that did not have to be analogous
to the specifically listed grounds in section 6(1) of the Employment Equity Act. The
Court held that the need to link the grounds that are not specifically listed in section
6(1) of the Employment Equity Act to the specifically listed grounds was the
3 Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC); [2020] 10
BLLR 1009 (LAC).
6
foundation of the line of authority that supports the “ narrow ” interpretation of the
words “ any other arbitrary ground”.
[17] The Labour Appeal Court held that section 6(1) of the Employment Equity Act
was not a catch- all phrase:
‘[24] … The thesis advanced was that the phrase “any other arbitrary
ground” had to be saved from redundancy. Thus, it must be understood to add something distinctive to the listed grounds. This thesis assumed the addition of a fresh class of grounds that is amorphous and is knowable simply
by the external manifestation of capriciousness. Its broad scope was argued
to be desirable.
[25] This is a radical idea. It would make s 6(1) a font of a remedy for
grievances with virtually no limits. But the EEA is not intended to be a catch all
or a panacea. Indeed, the EEA is the instrument of s 9 of the Constitution and therefore its mission is to give teeth to that constitutional guarantee within the
scope of the terms expressed in that section. Section 9 is not an all -
encompassing injunction, rather its purpose is to give recognition to the value
of our humanity and provide a remedy for aggression against us on the
grounds of our intimate attributes, whether inherent or adopted. In other
words, section 9 has a specific and concrete focus, intelligible within the
context of the historical experience of South Africa’s legacy of oppression. The writers, Garbers and Le Roux, rightly caution against being seduced by
the idea that anti -discrimination law can be weaponised to solve all labour
market ills. Other vicissitudes of life find remedies elsewhere, not least of all in
the panoply of protections in Labour Legislation. ’ (own emphasis)4
[18] The Labour Appeal Court held that the term “ any other arbitrary ground” was
not meant to be a self -standing ground:
‘[26] The insertion of the word ‘other’ supports the conclusion that the
phrase “any other arbitrary ground” was not meant to be a self -standing
ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of section 6. ’
4 Naidoo at paras 24-25.
7
[19] The Labour Appeal Court upheld the narrow compass interpretation of the
phrase “ any other arbitrary ground” , thus rejecting the broad interpretation of that
phrase.
[20] I am bound by the authority of the Labour Appeal Court , based on the stare
decisis doctrine. In my view, the approach of the Labour Appeal Court is not unfair or
unjust. The mere fact that the applicants in the current matter are unable to rely on
section 6(1) or (4) of the Employment Equity Act does not mean they do not have a
remedy. In other words, the fact that they are unable to link the employer’s conduct
to an arbitrary ground that is analogous to a ground specified in section 6(1) of the
Employment Equity Act in support of their claim of discrimination based on an
arbitrary ground does not mean they are without a remedy under our labour laws , as
the employer’s conduct may still constitute unfairness as envisaged in section 186(2)(a) of the Labour Relations Act , which provides that:
‘(2) “Unfair labour practice” means any unfair act or omission that arises
between an employer and an employee involving –
(a) Unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to
an employee. ’ (own emphasis)
[21] Such a claim based on section 186(2)(a) of the Labour Relations Act would be
continuous by nature. In South African Broadcasting Corporation Ltd v Commission
for Conciliation, Mediation and A rbitration and others ,5 the Labour Appeal Court held
the following:
‘[27] … While an unfair labour practice/unfair discrimination may consist of a
single act it may also be continuous, continuing or repetitive. For example where an employer selects an employee on the basis of race to be awarded a
once- off bonus this could possibly constitute a single act of unfair labour
practice or unfair discrimination because like a dismissal the unfair labour
practice commences and ends at a given time. But, where an employer
5 (2010) 31 ILJ 592 (LAC), [2010] 3 BLLR 251 (LAC) at paras 27-28.
8
decides to pay its employees who are similarly qualified with similar
experience performing similar duties different wages based on race or any other arbitrary grounds then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other he is evincing continued discrimination.
[28] Hence in the present matter the date of dispute does not have to
coincide with the date upon which the unfair labour practice/ unfair
discrimination commenced because it is not a single act of discrimination but
one which is repeated monthly. In the circumstances the dispute being labelled as ongoing was an accurate description of the “dispute date” and the
decision arrived at by the commissioner that there was no need for the respondent to seek condonation was correct. ’
[22] The Commissioner’s decision in this current matter is not unreasonable and
does not amount to an irregularity. It is in line with the Labour Appeal Court’s
decision in Naidoo .
[23] Condonation cannot be granted, due to the poor prospects of success and the
significant delay for which there is no proper explanation. The refusal to grant condonation means the rev iew application must be dismissed.
Costs
[24] The application was not opposed and as such there should be no order as to
costs.
[25] In the premises, I make the following order:
Order
1. Condonation for the late filing of the review application is refused.
9
2. The review application against the arbitration award under case
number GAEK4 49-17 dated 8 June 2017 is dismissed .
3. There is no order as to costs.
VG Mkwibiso
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr E. M. Modiga of Modiga Attorneys
For the Third Respondent: No appearance