IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN CASE NO C37/97
In the matter between:
MICHAEL LOUW Applicant
and
GOLDEN ARROW BUS SERVICES (PTY) LTD Respondent
____________________________________________________________
JUDGMENT
____________________________________________________________
LANDMAN J :
Introduction
1. Initially Mr Louw and Mr Fredericks, both coloured males, or, as Mr Louw may
1
prefer, black males in the broad sense of the term, jointly launched an
application complaining that Golden Arrow Bus Services (Pty) Ltd (Golden
Arrow), their employer, had committed an unfair labour practice by
discriminating against them on the grounds of their race.
2. A point in limine was taken by Golden Arrow that the dispute arose before the
commencement of the Labour Relations Act 66 of 1995 (the LRA of 1995) and
that consequently this court did not have jurisdiction to entertain the matter. A
statement of agreed facts, for the purpose of the point in limine, was placed
before Basson J. Basson J held that this court has the necessary jurisdiction
to entertain a dispute concerning an unfair labour practice still “being
perpetrated”. The ruling was based on the allegation that Mr Beneke, a white
warehouse supervisor receives a higher pay than the two applicants on the
basis of racial characteristics and contrary to the doctrine of equal pay for
work of equal value. See Louw and another v Golden Arrow Bus Services
(Pty) Ltd (1998) 19 ILJ 1173 (LC).
3. Thereafter, Mr Fredericks dropped out of the picture. The statement of claim
was amended as was the statement of defence. The matter proceeded to trial
before me. Mr M H Cheadle, assisted by Mr A J Steenkamp, appeared for the
applicant. Mr A J Freund, instructed by Mr P Farber, appeared for the
respondent.
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The issues
4. The applicant alleges, in his pleadings, that Golden Arrow has committed an
unfair labour practice in terms of item 2(1)(a) of the 7 th Schedule to the
Labour Relations Act 66 of 1995 (the LRA of 1995) because
(a) At all material times the work performed by the applicant and
Mr Beneke was and is of equal value; alternatively
(b) The difference in salaries is disproportionate to the difference in the
value of the two jobs.
5. The applicant defines the legal issues as the following:
1. The difference in salaries constitutes direct discrimination against the applicant
on the grounds of race, colour or ethnic origin because there is no justification for
the difference.
Alternatively
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2. The difference in salaries constitutes indirect discrimination against the applicant
on the grounds of race, colour or ethnic origin because the respondent applied facts
in its pay evaluation that had a disparate impact on black employees. These factors
were performance, potential, responsibility, experience, education, attitude, skills,
entry level and market forces.
3. By virtue of s 9(5) of the Constitution read with item 2 of Schedule 7 of the LRA of
1995, the discrimination against the applicant is unfair.
Alternatively
The discrimination against the applicant is unfair.
6. He seeks compensation in the amount of the difference between the total
salary packages paid to the him and Mr Beneke for the period 11 November
1996 (the date on which the LRA of 1995 came into operation) to date of
judgment and interest. He also seeks an order compelling his employer to pay
the difference in salaries until the job of buyer and warehouse supervisor have
been evaluated by an independent job evaluator and the salaries for the jobs
have been determined.
7. Golden Arrow agrees that there is a wage differential between the salary paid
4
to Mr Louw and that paid to Mr Beneke but avers that the jobs of the two men
are not of equal value and that the differential is attributable to a number of
considerations, none of which involve racial discrimination. In this judgment
the terms pay, wage, salary and remuneration are used as synonyms.
The law
A residual unfair labour practice
8. Item 2(1)(a) sets out the requirements of a residual unfair labour practice. An unfair
labour practice is any
∙ unfair act or omission;
∙ that arises between an employee and an employer;
∙ involving unfair “discrimination”;
∙ which is unfair;
∙ either directly or indirectly;
∙ against an employee;
∙ 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.
9. It is necessary to comment on some of the elements constituting a residual unfair
labour practice. I also intend to say something about Mr Freund’s submission on
5
culpability which does not feature in the wording of item 2(1)(a).
10. The item refers to an act or omission. The applicant alleges an omission. Mr
Cheadle expressed it this way when I sought clarity on the applicant’s cause of
action:
“Our case will be that [Golden Arrow] inherited racial discrimination in the past and that
they have done nothing about it to date. Their responsibility starts and their failure and
their unfair labour practice and their unfair discrimination may well be no more than not
correcting an historical, inherited racial discrimination situation.”
11. The unfair omission must be one “involving” unfair discrimination. The word
“involve” is not one with a particularly precise meaning. The Shorter Oxford
Dictionary (leaving out portions and symbols) gives the following meanings:
involve 1. Wrap, surround, enfold, envelop.
2. Make obscure or difficult to understand; complicate, entangle.
3. Bring (a person) into a matter; embroil (a person) in trouble, difficulties, perplexity, etc. b Commit emotionally;
concern closely with another, in a matter.
4. Wind spirally; wreathe, coil. b Join as by winding together; intertwine with.
5. Include covertly in or under something; wrap up. b Include, contain, comprehend. c Contain implicitly;
include as essential; imply, call for, entail. d Affect, concern directly.
6. Absorb completely; envelop, overwhelm. b Engross; occupy (a person) fully.
7. Implicate in a charge or crime; cause or prove (a person) to be concerned.
8. Math. Raise (a quantity) to a power. Now rare or obs.
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9. “Involving” is not the same as having the effect of discrimination as was used in the
definition of an unfair labour practice in the repealed Labour Relations Act 28 of
1956 (the LRA of 1956). The former definition of an unfair labour practice, as it
stood at the date of the demise of the LRA of 1956, did not expressly require
intention or negligence. It would seem that it has conventionally treated by the
Industrial Court, the Labour Appeal Court and the Appellate Division, now termed
the Supreme Court of Appeal, as a concept that does not require culpability.
10. It has been held that it is not necessary to show any intention to discriminate for
discrimination to be established. Intention or motive of the employer may however
be relevant to the remedy which the court may impose. See Leonard Dingler
Employee Representative Council v Leonard Dingler (Pty) Ltd & others (1998)
19 ILJ 285 (LC) at 289 G H and 293 A. See also: R v Birmingham City Council,
ex parte EOC [1989] IRLR 173 (HL) and James v Eastleigh Borough Council
[1990] 1 IRLR 288 (HL).
Intention or motive
11. Mr Freund sought to persuade me that intention or motive was an integral part of a
residual unfair labour practice. He urged me to follow the strands of discrimination
law applied in the United States. In Watson v Fort Worth Bank and Trust 487
US 977 (1988) Justice O’Connor stated at 839:
7
“Several of our decisions have dealt with the evidentiary standards that apply when an individual alleges
that an employer has treated that particular person less favourably than others because of the plaintiff’s race,
color, religion, sex, or natural origin. In such `disparate treatment’ cases, which involve `the most easily
understood type of discrimination,’ Teamsters v United States , 431 US 324, 335, n15, 52 L Ed
2d 396, 97 S Ct 1843 (1977), the plaintiff is required to prove that the defendant had a
discriminatory intent or motive.”
12. See also the “Developments in the Law Employment discrimination” 1996 Harvard
Law Review (May 1996, Vol 109 No 7) where it is stated (at 1580):
“There are two main types of discrimination cases: disparate treatment and disparate
impact. Disparate treatment cases concern employment practices or incidents that
intentionally subject people to impermissible discrimination. Disparate impact cases
involve neutral employment policies, such as competency tests, that have the unintended
effect of discriminating against individuals who belong to a protected class.”
13. Mr Freund submitted that the applicant must prove that Golden Arrow had the
motive or intention to discriminate.
14. The matter before me concerns an alleged residual unfair labour practice. The
concept of an unfair labour practice was received into our labour law on 1 October
1979 and has undergone several mutations (not all of them happy ones) until the
repeal of the LRA of 1956 with effect from 11 November 1996. The LRA of 1995
retained the essentials of the concept of an unfair labour practice, termed a residual
8
unfair labour practice, in item 2(1)(a). Du Toit et al The Labour Relations Act 28
of 1995 2 nd ed 430 431 comment that:
“Discrimination on the basis of sex, race or colour was outlawed in 1981 by amendments
to the previous Act and the Wage Act. Over the same period, discrimination on these and
other grounds became vulnerable to attack under the unfair labour practice jurisdiction of
the Industrial Court.
Discrimination on the grounds of age and gender was found to be unfair under certain
circumstances. It was also held that unequal pay for work of equal value is unfair. The
new Act sets out to incorporate these principles into a comprehensive framework which,
while specifically prohibiting certain prevalent forms of employment discrimination, can be
used to strike down unfair discrimination.”
15. It does not seem that the LRA of 1995 intended to change the basic fabric of the
concept of an unfair labour practice, although it trimmed its ambit to the bare
essentials pending the enactment of more comprehensive legislation. This has
materialised as the Employment Equity Act 58 of 1998. The Employment Equity Act
of 1998 provides in Schedule 3 that pending disputes should be determined in terms
of the repealed Act.
16. I could trace no case which required an applicant to prove culpa (intent or
negligence) on the part of an employer or employee. This is probably because the
9
definition of an unfair labour practice was an effect based one. See the
observations in Media Workers Association of South Africa and others v The
Press Corporation of SA Ltd (1992) 13 ILJ 1391 (A) at 1399 H I. See also A
Rycroft “Preventing and Proving WorkPlace Discrimination” 1991 (Vol 12) ILJ
722 at 729 who says :
“The ambiguity in the concept of ‘intent’ suggests that South African law should likewise
decline to rely on intent but should look at the impact of the alleged discrimination.”
17. The definition of an unfair labour practice and its successor, the residual unfair
labour practice, is not based on delict which would require culpa. Nor is the concept
deemed to be a term or an implied term of the contract of employment. There is
some analogy between an unfair labour practice and a breach of contract in so far
as a breach of contract is largely viewed as an event which need not be
accompanied by fault. This is so even as regards repudiation of contract. See Van
Rooyen v Minister van Openbare Werke 1979 (2) SA 835 (A) at 845. See also
the discussion in A J Kerr Principles of the Law of Contract 4 th ed 427 433.
18. The answer to the question of culpa lies in the interpretation of the statute. The
statute creates, in my view, a form of strict liability. An applicant need not prove
culpa although the act in question may, in the ordinary course of events, be
accompanied by intention, negligence and motive. Cf the discussion on strict
10
liability for criminal offences in Amalgamated Beverage Industries Natal (Pty) Ltd
v Durban City Council 1994 (3) SA 170 (A) at 175. As far as strict civil liability is
concerned see Telkom (SA) Ltd v Duncan 1995 (3) SA 941 (W). It follows, in my
opinion, that a defence of lack of intent or motive will receive short shrift.
19. In order to discover whether there has been an unfair labour practice involving unfair
discrimination the elements of item 2(1)(a) must be proved. The logic of proving or
demonstrating unfair discrimination may be drawn from the approach of the
Constitutional Court in Harksen v Lane NO 1998 (1) SA 300 (CC) at 325 A D.
The court must first ask itself:
(a) Does the act or omission constitute differentiation between people or
categories of people?
(b) If the answer is positive, the court embarks on a two stage analysis:
“(i) Firstly, does the differentiation amount to ‘discrimination‘? If it is on a
specified ground, then the discrimination will have been established. If it 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
adversely in a comparably serious manner.
11
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found to have been on a specified ground, then unfairness
will be presumed. If on an unspecified ground, unfairness will have to be established by
the complainant. The test of unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or her situation.”
20. The concept of the unfair labour practice also caters for indirect discrimination. This
form of discrimination is often disguised and difficult to detect. This court has made
some preliminary observations on indirect discrimination in Kadiaka v
Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC). A useful survey of the
concept of indirect discrimination in the law of the United States (there termed
“disparate impact”) and countries in Europe is to be found in Titia Loenen “The
Equality Clause in the South African Constitution: Some remarks from a
Comparative Perspective” 1997 South African Journal of Human Rights 401 at
419429.
21. Mr Cheadle did not seek to rely on indirect discrimination in his closing
argument. Of course he did not abandon the point. Nevertheless, without
the benefit of argument, I do not intend deciding this issue.
Equal pay for equal work or work of equal value
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22. Fairness requires that persons doing equal work should receive equal pay.
See National Union of Mineworkers v Henry Gould (1988) 9 ILJ 1149 (IC)
and SA Chemical Workers Union v Sentrachem (1988) 9 ILJ 410 (IC). This
principle which asserts equality has been distorted in the past in this country.
See M A du Toit South African Trade Unions , 1976 at 133:
“The principle or slogan of equal pay for equal work has long been heard in South Africa.
It is often quoted as a better and more reasonable measure of protection for Whites than
statutory job reservation.
This principle can be applicable to many things but applies particularly in respect of race
and sex. Thus it is argued that remuneration should be according to responsibility, in
which case economic factors as regards race and sex are equal. In South Africa,
however, the emphasis is on the racial aspect and the talk is often of equal pay for equal
work, irrespective of race or colour.
This is not an unfamiliar principle. Basically, it is applied in South African legislation by
way of determination in respect of wages, in that there may be no discrimination on the
grounds of race or colour. In fact, it is usually coupled with the standard of living, and
though certain minimum standards are laid down, Whites generally receive higher wages
than nonWhites. This is considered wrong in principle because the wages actually
received should be the same. According to the argument of equal pay for equal work, the
White will be protected automatically, because no employer will employ Blacks at the
13
same wage when Whites are available.”
23. The principle “equal work should receive equal pay” in its true form may be
extended to an analogous situation namely that work of equal value should
receive equal pay. These premises have not been enshrined as principles of
law in the unfair labour practice definition. They are principles of justice,
equity and logic which may be taken into account in considering whether an
unfair labour practice has been committed, eg the payment of unequal pay for
equal work or work of equal value in the context of unfair discrimination. In
other words it is not an unfair labour practice to pay different wages for equal
work or for work of equal value. It is however an unfair labour practice to pay
different wages for equal work or work of equal value if the reason or motive,
being the cause for so doing, is direct or indirect discrimination on arbitrary
grounds or the listed grounds eg race or ethnic origin. A van Niekerk
“Equality Rights and the new Act” in M H Cheadle et al 1995 Current Labour
Law 76 at 88 categorises these principles of equity as tests which potentially
might be applied to determine whether discrimination exists.
24. This view finds resonance in the comments proffered by Sarah Christie and
others who say, in the context of gender discrimination, in “Submissions
on the promotion of equal opportunities draft bill” in M H Cheadle et al
1993 Current Labour Law 123 at 134:
14
“We recommend that the provision relating to pay equity form part of the general
prohibition on discrimination, rather than exist as a separate clause, for the following
reasons:
(i) there is no logical or conceptual reason why the clause requiring equal
remuneration for work of equal value should exist separately from the general
prohibition on discrimination. The failure to pay equal remuneration for work of equal
value is merely one instance of the broader evil of discrimination....”
25. It follows, in our law, that an employer may therefore discriminate, even
unfairly, on any grounds or for any reasons which are not proscribed by item
2(1)(a).
Causation
26. It is necessary to distinguish clearly between discrimination on permissible
grounds and impermissible grounds. An unfair labour practice is only
committed (even by omission) if the impermissible grounds are the cause of
the discrimination. Discrimination on a particular “ground” means that the
ground is the reason for the disparate treatment complained of. The mere
existence of disparate treatment of people of, for example, different races is
15
not discrimination on the ground of race unless the difference in race is the
reason for the disparate treatment. Put differently, for the applicant to prove
that the difference in salaries constitutes direct discrimination, he must prove
that his salary is less than Mr Beneke’s salary because of his race. Cf
Association of Professional Teachers & another v Minister of Education
and others (1995) 16 ILJ 1048 ( IC) at 1051: “ In simple terms sex
discrimination may be described as the less favourable or differential
treatment of a woman solely on the basis of her sex.” at 1081; Prinsloo v
Van der Linde & another 1997 (3) SA 1012 at 1026 DF; TGWU v Bayete
Security Holdings [1999] 4 BLLR 401 (LC) at 402; Harksen v Lane NO &
others ( supra) at 321 323.
27. The English courts rely, inter alia, on the standard causation test, described
shortly as the “but for test”. In James v Easteigh Borough Council [1990]
228 Lord Goff held at 294 that
“... cases of direct discrimination under s.1(1)(a) can be considered by asking the simple
question: would the complainant have received the same treatment from the defendant but
for his or her sex? This simple test possesses the double virtue that, on the one hand, it
embraces both the case where the treatment derives from the application of a gender
based criterion, and the case where it derives from the selection of the complainant
because of his or her sex; and on the other hand it avoids, in most cases at least,
complicated questions related to concepts such as intention, motive, reason or purpose,
16
and the danger of confusion arising from the misuse of those elusive terms.”
28. But as Bourne and Whitmore Race and Sex Discrimination 2nd ed par 2.06
point out: “A simple juxtaposition of a woman and man who have received
different treatment or two persons of different racial groups who have been
treated differently, is insufficient.” See Bullock v Alice Ottley School [1991]
IRLR 324 (EAT).
29. This raises the question whether impermissible unfair discrimination, in our
law, must be the sole cause of the discrimination nor whether it is enough that
it be a cause. At least three possibilities present themselves.
30. The first is to say that any contamination by impermissible unfair
discrimination is sufficient to find that the act or omission complained of is
caused or attributable to it. This approach concentrates on the consequences
of discrimination. See J Kentridge “Measure for measure: Weighing up the
costs of a feminist standard of equality at work” 1994 Acta Juridica 84 at
105.
31. The second approach is to say that an immaterial contamination is
tantamount to no contamination. This approach is expressed as a defence in
section 1(3) of the English Equal Pay Act 1970 which permits a defence
of “material difference (other than the difference of sex)". In Clay Cross
17
(Quarry Services) Ltd v Fletcher [1978] IRLR 361 Lord Denning MR
referred to Shields v E Coomes (Holdings) Ltd [1978] IRLR 263 that s
1(3) applies when `the personal equation of the man is such that he
deserves to be paid at a higher rate than the woman’. Thus the personal
equation of the man may warrant a wage differential if he has much
longer length of service, or has superior skill or qualifications; or gives
bigger output or productivity... An employer cannot avoid his obligations
under the Act by saying: `I paid him more because he asked for more’.”
32. In Rainey v Greater Glasgow Health Board [1987] IRLR 26 (HL) 29
Lord Keith of Kinkel said in his speech:
“The difference must be `material’, which I would construe as meaning `significant
and relevant’, and it must be between `her case and his’. Consideration of a
person’s case must necessarily involve consideration of all the circumstances of
that case. These may well go beyond what is not very happily described as `the
personal equation’, ie the personal qualities by way of skill, experience or training
which the individual brings to the job. Some circumstances may on examination
prove to be not significant or not relevant, but others may do so, though not relating
to the personal qualities of the employer (sic). In particular, where there is no
question of intentional sex discrimination whether direct or indirect (and there is
none here) a difference which is connected with economic factors affecting the
18
efficient carrying on of the employer’s business or other activity may well be
relevant.”
33. Lord Keith found support for his view in two decisions of the European
Court of Justice: Jenkins v Kingsgate (Clothing Productions) Ltd
[1981] IRLR 228 and BilkaKaufhaus GmbH v Weber von Hartz
[1986] IRLR 317.
34. The third approach seems to be that there will be unfair discrimination to the
extent that the discrimination in the case under investigation is caused
or contaminated by it. This exercise is unlikely to be easy. It is akin to an
attempt to unscramble an omelet. But, I believe, it is the only way to
give effect to the injunction not to discriminate on the impermissible
grounds leaving permissible discrimination intact. The task is not made
easier when the first eggs for the omelet were cracked in 1990 or earlier.
35. In Enderby v Frenchay Health Authority [1993] IRLR 591 (ECJ) 595
the court held :
“In its third question, the Court of Appeal wishes to know to what extent wholly, in
part or not at all the fact that part of the difference in pay is attributable to a
19
shortage of candidates for one job and to the need to attract them by higher salaries
can objectively justify that pay differential.
The Court has consistently held that it is for the national court, which has sole
jurisdiction to make findings of fact, to determine whether and to what extent the
grounds put forward by an employer to explain the adoption of a pay practice which
applies independently of a worker’s sex but in fact affects more women than men
may be regarded as objectively justified economic grounds (judgments in Case
170/84 BilkaKaufhaus, cited above at paragraph 36 and Case C184/89 Nimz,
cited above, at paragraph 14). Those grounds may include, if they can be attributed
to the needs and objectives of the undertaking, different criteria such as the
worker’s flexibility or adaptability to hours and places of work, his training or his
length of service (judgment in Case 109/88 Danfoss , cited above, at paragraphs 22
to 24).
The state of the employment market, which may lead an employer to increase the
pay of a particular job in order to attract candidates, may constitute an objectively
justified economic ground within the meaning of the case law cited above. How it is
to be applied in the circumstances of each case depends on the facts and so falls
within the jurisdiction of the national court.
If, as the question referred seems to suggest, the national court has been able to
20
determine precisely what proportion of the increase in pay is attributable to market
forces, it must necessarily accept that the pay differential is objectively justified to
the extent of that proportion. When national authorities have to apply Community
law, they must apply the principle of proportionality.
If that is not the case, it is for the national court to assess whether the role of market
forces in determining the rate of pay was sufficiently significant to provide objective
justification for part or all of the difference. ”
36. Any remedy would have to be proportionate to the extent of the discrimination.
This may be difficult but it is in my opinion imperative to do this lest legitimate
conduct and its effects be impinged. In the case of doubt the onus will play its
usual role.
The onus or burden of proof proper
37. Both Mr Cheadle and Mr Freund urged me to consider carefully the
question of the onus of proof in regard to discrimination claims framed
as residual unfair labour practices. This also requires consideration of
the evidential burden or, as it is technically known in this country in the
Afrikaans tongue, the “weerleggingslas”.
21
38. The Industrial Court, which, in spite of its name, was an administrative
body held that it was not bound by the strictures of onus in deciding
whether an unfair labour practice was committed in terms of the LRA of
1956. See Medupe v Golden Spur (1987) 8 ILJ 376 (IC).
39. The Labour Court, as a court of law, functioning as such applies the
onus in deciding whether an applicant is entitled to relief. See Leonard
Dingler Employee Representative Council v Leonard Dingler (Pty)
Ltd and others (supra).
40. The Labour Court has held that the onus of proof for a claim based on
item 2(1)(a) is on the applicant. See TGWU and another v Bayete
Security Holdings (supra). The onus is acquitted in this court on a
balance of probabilities.
41. I believe it is correct that the onus or burden of proof lies on the
applicant claiming relief. I use the term onus or its equivalent, burden of
proof, in the sense used in Pillay v Krishna 1946 AD 946 at 952 to
mean the duty upon the litigant, in order to be successful, of finally
satisfying the court that he or she is entitled to succeed on the claim, or
defence as the case may be. See too Hoffman and Zeffert The South
22
African Law of Evidence 4th ed 495.
42. The incidence of the onus of proof is a rule of substantive law. See
Hoffman and Zeffert at 509. In order to discover the rule, where the law
is laid down by statute, one examines the instrument. The 7 th Schedule
is silent on the question of onus. However s 3 of the LRA of 1995 makes
it plain that this court must interpret the Act, including Schedule 7
“(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”
43. The Constitution of the Republic of South Africa, 1996 provides in s 9(5)
that “Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is fair”. The
grounds listed in subsection (3) include race, colour and ethnic origin.
44. The common law, though Hoffman and Zeffert are doubtful whether it is
of any great assistance, is instructive. I take the liberty of paraphrasing
Davis AJA’s summary of the Roman law principle in Pillay v Krishna
(supra) at 951952. If one person claims something from another in a
court of law, then he or she has to satisfy the court that he or she is
23
entitled to it. But there is a second principle which must always be read
with it. Where the person against whom the claim is made is not content
with a mere denial of that claim, but sets up a special defence, then he
or she is regarded quo ad that defence as being the claimant and for the
defence to be upheld he or she must satisfy the court that he or she is
entitled to succeed on it.
45. It must also be appreciated that the rules of the incidence of the burden
of proof, as Davis AJA pointed out, are derived from “broad and
undefined reasons of experience and fairness”.
46. In the case of direct discrimination the true explanation for an unfair
differentiation is usually, although not always, known to or discoverable
by the perpetrator of the differentiation. See G Bindman “Proof and
Evidence of Discrimination” in B Hepple and E M Szyszczak
Discrimination: The limits of the Law (1992) 50 at 57. See also S
Engles “Problems of proof in employment discrimination: The need for a
clearer definition of standards in the United States and the United
Kingdom” 1994 (Vol 15) Comparative Labor Law Journal 340370 at
368.
47. It may be that the onus remains on the applicant but that less evidence
24
will suffice to establish a prima facie case where the matter is peculiarly
within the knowledge of the perpetrator. See Innes J in Union
Government (Minister of Railways) v Sykes 1913 AD 156 at 173174.
48. Mr Cheadle and Mr Freund are agreed that the onus proper is on the
applicant. This is undoubtedly so. They are also agreed that the mere
averment of discrimination does not constitute proof of discrimination.
See Abbot v Bargaining Council for the Motor Industry (Western
Cape) [1999] 2 BLLR 115 (LC) and Swanepoel v Western Region
District Council and another (1998) 19 ILJ 1418 (SE).
49. Mr Cheadle, with his customary eloquence, sought to persuade me to
adopt the United States three stage approach formulated in McDonnell
Douglas Corp v Green 411 US 792 as follows :
(a) the employee must establish a prima facie case;
(b) the employer must offer a legitimate nondiscriminatory reason for its action
(or omission); and
(c) the employee must then prove that this supposedly legitimate
25
nondiscriminatory reason was a pretext to mask an illegal
motive.
50. The Harvard Law Review “Developments in the Law Employment
Discrimination” (May 1996, Vol 109 No 7) comments as follows at 1581:
“The McDonnell Douglas route is designed for plaintiffs who cannot adduce such
elusive incriminating evidence, and consists of a tripartite burdenshifting
framework. In the first stage, the plaintiff has the burden of showing a prima facia
case to create a presumption of discrimination. Once shown, the burden shifts to
the defendant to articulate a legitimate, businessrelated reason for the difference in
treatment. The Supreme Court has held that this secondstage burden is merely
one of production and is thus easy for the defendant to discharge. The burden then
shifts back to the plaintiff for the third stage, sometimes called the pretext stage, in
which the plaintiff must show that the defendant’s proffered reasons are unworthy of
credence, that is, merely pretexts for an underlying discriminatory motive.”
51. Mr Cheadle submitted that the jurisprudence developed by the US
courts have placed a relatively light burden on the plaintiff to establish a
prima facie case by altering the traditional standard of proving all the
required elements of the claim to ruling out the most common reasons
for adverse job actions. “The prima facie case serves an important
function in the litigation, it eliminates the most common non
26
discriminatory reasons for the plaintiff’s rejection.” See Texas
Department of Community Affairs v Burdine 450 US 248 (1981).
52. The burden then shifts to the employer to produce legitimate reasons for
the difference in treatment a socalled “burden of production”. In other
words the employer has to do no more than advance reasons. It does
not have to prove that they were in fact the reasons for the difference in
treatment. The employer’s obligation is simply to frame the factual
issues with sufficient clarity to give the plaintiff a fair chance to
demonstrate the pretext.
53. The overall burden of proof remains however on the employee. The
employer’s sole obligation at the second stage is to articulate a
legitimate nondiscriminatory reason rather than establishing by a
preponderance of the evidence that its proffered reason was the real
reason. See Board of Trustees of Keene State College v Sweeney
439 US 24 (1978) and Furnco v Walters 438 US 667 (1978) and
Burdine (supra) 253254.
54. In Hicks (supra) (at page 148 of Zimmer et al Cases and Material on
Employment Discrimination (1994)) it is said:
27
“It is important to note, however, that although the McDonnell Douglas presumption shifts the
burden of production to the defendant, `the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff’’‘.
55. I do not think it will be helpful to go down the American road of the
burden of production particularly where the applicant in a claim involving
a residual unfair labour practice need not prove intention. The burden of
production seems to involve the setting up of a skittle which if knocked
down may have no appreciable effect. Nor is a consideration of the
shifting onus useful. Our law appears, correctly, to have turned its back
on piecemeal adjudication and the shifting sand of shifting onuses. As
Hoffman and Zeffert point out at 520: “The only stage at which the court
will give a ruling is after it has heard all the evidence, and then it will
simply decide whether the party who bore the onus has discharged it.”
Judicial reasoning
56. There is a role for concepts such as a prima facie case and a failure to
rebut it (the failure to acquit an evidentiary burden the weerlegingslas)
in the process of evaluating evidence and in reasoning directed at
determining the final decision. In Ex parte Minister of Justice: re R v
28
Jacobson and Levy 1931 AD 466 at 478 Stratford JA said:
“Prima facie evidence in its usual sense is used to mean prima facie proof of an
issue, the burden of proving which is upon the party giving that evidence. In the
absence of further evidence from the other side, the prima facie proof becomes
conclusive proof and the party giving it discharges his onus.”
57. Hoffman and Zeffert say at 596:
“In this sense, prima facie evidence means evidence capable of being
supplemented by inferences drawn from the opposing party’s failure to reply.
Whether such inferences may legitimately be drawn depends upon the nature of the
case and the evidence which has been adduced. Most important, it depends upon
`the relative ability of the parties to contribute evidence on that issue’. If the
evidence adduced by one party can reasonably support an inference in his favour,
and it lies exclusively within the power of the other party to show what the true facts
were, his failure to do so may entitle the court to infer that the truth would not have
supported his case. On the other hand, if there is no reason to expect a party to be
able to throw light upon the facts, his silence can add nothing to the evidence
adduced by his opponent.”
58. Holmes JA said in Ocean Accident and Guarantee Corporation Ltd v Koch
29
1963 (4) SA 147 (A) at 159 BD :
“As to the balancing of probabilities, I agree with the remarks of Selke, J., in Govan v Skidmore , 1952
(1) S.A. 732 (N) at p. 734, namely
‘. . . in finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys
in his work on Evidence, 3rd ed, para. 32, by balancing probabilities select a conclusion
which seems to be the more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only reasonable one.’
I need hardly add that “plausible” is not here used in its bad sense of “specious”, but in
the connotation which is conveyed by words such as acceptable, credible, suitable ( Oxford
Dictionary, and Webster’s International Dictionary). ”
The facts
59. Michael Louw joined MultiSuppliers (Pty) Ltd, a wholly owned subsidiary
of City Tramways (Pty) Ltd, as a buyer on 1 May 1984. He was moved to
a division established as Multimech but transferred back
to MultiSuppliers. O n 1 April 1992 Golden Arrow Bus Services (Pty) Ltd purchased
the businesses of City Tramways and MultiSuppliers and conducted these
30
businesses as trading divisions of Golden Arrow. Golden Arrow carries on business
in the passenger transport industry in Cape Town and its surrounds. Mr Louw
describes himself as a black person. In terms of the definitions of the pre1994
political dispensation he would be described as a “coloured” person.
60. Mr Louw complains in this court that Golden Arrow, which is still his
employer, has committed an unfair labour practice as contemplated by
item 2(1)(a) in that it directly or indirectly unfairly discriminates between
him as a coloured male and a Mr Beneke, a white male, previously a
buyer and currently a warehouse supervisor.
61. When Mr Louw joined MultiSuppliers in 1984 he was paid a salary of R
750 per month. He was earning R1500 pm in 1990 when Mr Beneke
was appointed as a buyer in the same company. Mr Beneke was
appointed on a salary of R2300 pm.
62. The monthly cash earnings of Mr Louw and Mr Beneke are common
cause. These earnings can be tabulated in abbreviated form as follows:
YEAR MR LOUW MR BENEKE
1990 R1500 R2300
1991 R1690 R2575
31
1993 R1990 R3135
1994 R2130 R3385
1996 R2540 R4050
1998 R3335 R5390
63. The significance of these years is the following:
∙ 1990 Mr Beneke joins MultiSupply as a buyer.
∙ 1991 FSA conducts pay survey classified by race.
∙ 1993 Mr Beneke acts as warehouse supervisor.
∙ 1994 Mr Beneke appointed warehouse supervisor.
∙ 1996 LRA of 1995 comes into operation.
∙ 1998 Expert evaluation by Ms Scholtz for purpose of this case.
64. The wage gap between Mr Louw and Mr Beneke expressed as a
percentage of Mr Louw’s pay for the years in question shows the
following:
∙ 1990 53,3%
∙ 1991 52,4%
∙ 1993 57,5%
∙ 1994 58,9%
∙ 1996 61,6%
∙ 1998 61,6%
65. The 1991 Peromnes pay survey of FSA clients using this system of job
evaluation who took part in the survey shows that in the Cape Town
32
area white males earned on average 6,1% more than coloured males.
This is Mr Steer’s (an expert called by Golden Arrow) calculation. It may
be that this is conservative and that the wage gap was higher. I raised
this with the parties but no other figures were formally proved.
66. Only Mr Louw gave evidence before closing his case. He described in
detail and gave examples about his job, his job description, the nature
and extent of his job, the tasks and functions he performed, the level of
responsibility, the technical knowledge required and its complexity. He
also stated that in his opinion the job of a warehouse supervisor was of
equal value to the job that he did as a buyer.
67. Mr Louw’s complaint and that of Mr Fredericks was raised in August
1991. It was raised on other occasions also by NUMSA.
68. Golden Arrow led the evidence of four witnesses. Mr Steer an expert on
job evaluation and salaries, Mr Brice a former managing director, Mr
Gie the present executive director and Mr Human, a former manager.
69. Mr Steer is a director and a remuneration consultant of FSA Contact
(Pty) Ltd. It is said to be South Africa’s largest remuneration and salary
33
survey consultancy. He has degrees in Industrial Chemistry, Psychology
and Economics. In his 15 years with FSA Contact he has worked with a
large range of public and private sector organizations in all areas of
remuneration practice, in particular, remuneration analysis, performance
systems and job evaluations. Prior to joining FSA Contact Mr Steer
worked at senior management level in the mining, chemical and food
industries in both production and human resource functions. He has
extensive experience at both practical and theoretical levels in the
development and implementation of remuneration systems.
70. Mr Steer explained the Peromnes job evaluation system and how it is
applied. He made references to a report prepared by one Ms Scholtz. I
draw from this document.
71. The Peromnes job evaluation method is a points assessment technique
which examines each job on eight factors and weights each of these
factors according to a predetermined scale. The scores, when totaled,
determine the position of the job in the grade ranking. This method is in
wide usage and is particularly suited to the evaluation of jobs in a
skilled, knowledge worker environment. The factors analyzed are:
￢ Problem Solving
34
￢ Consequences of Judgements
￢ Pressure of work
￢ Knowledge
￢ Job Impact
￢ Comprehension
￢ Educational Qualification
￢ Training Experience
72. The typical questions asked focus on the degree to which the job
incumbent would be required to solve complex problems: the types of
information used and the range of reasonable solutions to select from
making decisions or recommendations; whether the job requires the
individual to exercise judgement and what precedent or controls and
checks exist; the extent and consequences of any errors of judgement
(assuming competence) at varying levels in the organization and the
external environment; the types of information, data and documentation
that would be used in the job: the level of understanding of operational
systems and professional knowledge requirements; the degree of
disparity and competing demands in time and attention inherent in the
tasks in the job which generate pressure (excluding repetition of straight
forward shortcycle tasks against the clock): the minimum essential level
35
of qualification required for the entry to the job; and, the minimum
period of time based experience to achieve competence in this position.
73. For each factor there is a range of points to be allocated. The process is
computerized and the questions asked are standardized. This minimizes
inconsistency in the type, depth and amount of information required to
allocate any score and that the process is as systematically done as is
possible.
74. Mr Steer notes that the positions of buyer and warehouse supervisor,
which are the subject of this case, have already been evaluated by an
expert witness, Ms Scholtz, using the Peromnes Job Grading System
and have been found to be two grades apart. The job grades
determined and the job and grade differential are within established
parameters and are accepted by Mr Steer as the basis for his
evaluation.
75. Mr Steer is of the opinion that theoretically, it can be expected that there
may be pay differentials of at least 30% to 55% between the average
pay for two jobs that are two grades apart. This differential, which is
widely documented, is a mathematical concept that results from the
36
development of smoothed pay provisions linking the pay level of the
most junior position to the most senior within an organisation.
76. In practice, pay differentials between job levels and the incumbents are
subject to very wide variations. The following are examples of factors
that will influence pay differentials:
∙ The performance, experience, skills and potential of the various incumbents;
∙ The market factors which would influence supply and demand and
consequently the remuneration for the particular position;
∙ The employer’s judgement as to the position’s relative importance and value
to the organization. A position that is regarded as particularly critical to the well
being of the organisation would often attract a pay premium with the view of
maintaining a competitive advantage in retaining valued employees;
∙ The influence of collective bargaining, minimum pay levels, bargaining
councils and industry agreements.
77. In this case, the current pay differentials between the two incumbents is
37
61,6%, a situation which could result from all or some of the following:
“2.4.1Superior performance, skills or potential of the incumbent in the senior
position could increase the pay differentials by at least 10% to 20%;
2.4.2 Market factors would have a similar influence on the remuneration
levels;
2.4.3 The organization may have placed a higher value in terms of value or
importance to the more senior position and therefore decided to award a premium
to the position;
2.4.4 The differential may reflect the organization’s pay policy in respect of
hierarchical relationships, ie they have a steeper pay progression than the
theoretical.”
78. To illustrate the variations that occur Mr Steer noted that another buyer
in the organization, Mr Vember, who is also of “ coloured” origin, has a
much lower pay differential of 19,3% in relation to the warehouse
supervisor.
38
79. It can thus be seen that there are numerous factors influencing
remuneration levels and differentials between different positions and at different
levels within organizations and that size of the differential can vary greatly as a
result of these influences.
80. In the opinion of Mr Steer, the size of the differential in this matter is well
within what could be expected as are the result of normal organizational
and market forces.
81. In addition Mr Steer attested that the fact Mr Vember has a much lower
salary differential in relation to the warehouse supervisor, very much
removes the likelihood that respondent has practiced racial or ethnic
discrimination.
82. Mr Steer was provided with a transcript of the evidenceinchief of Mr
Louw which he analyzed taking into account his consultation with Mr
Farrel and Mr Gie and his assessment of the length of time necessary to
train a buyer. He made an evaluation of the job of a buyer based on this
data (called buyer one) and concluded that it ranked at grade 10 on the
Permones scale.
83. Next Mr Steer examined the above mentioned data in the light of the
39
crossexamination of Mr Louw. Precisely how he did this is open to
some doubt. It would seem that he made, as it were, credibility findings
and accepted partially that material put in crossexamination was
evidence and preferable to some replies by Mr Louw regardless of
whether it was conceded or not. The result of this evaluation (called
buyer two) was that Mr Steer placed the job of buyer on grade 9.
Apparently this was also the conclusion reached by Ms Scholtz.
84. Mr Steer was subjected to intense crossexamination. An object of the
crossexamination was to wring a concession that Mr Louw’s evidence
inchief should have been used as the basis for the evaluation. Mr Steer
accepted that should I find that his own crossexamination was
successful it would mean that the job of a buyer should be evaluated at
grade 10 which was a one grade difference between that job and the job
of a warehouse supervisor.
85. Mr Brice was formerly a managing director. The main import of his
evidence is that Mr Beneke was employed as one of two persons
employed as part of a succession plan. He was to be groomed for
management and thus started his career with MultiSuppliers as a trainee
buyer. He was hired for his potential. He was also hired at the rate of
R2300 pm because he wanted more than he was currently earning,
40
namely R2200. MultiSuppliers did not discriminate on racial grounds
between its employees.
86. Mr Gie, at the time of giving evidence, was the Executive Director of
Golden Arrow. He gave wide ranging evidence. He stated that Golden
Arrow was opposed to racial discrimination and that if it was brought to
his attention he would have put it right. Golden Arrow serviced a mainly
black customer base. Its management is composed of black and white
persons.
87. He explained that Mr Beneke was employed at the salary of R2300
because the company wanted his services and that was the salary that
he needed to be attracted to the company. It was not race based.
88. Mr Beneke was moved out of the buying function into the warehouse in
September 1993. He took on additional responsibilities. He was not
awarded a pay increase. He was content to do this job without an
increase as he understood that Golden Arrow was engaged in a
restructuring process.
89. Mr Gie explained that there are no two persons who earn the same
salary in the buyer’s department. All the buyers earn in excess of the
41
minimum rates that are applicable in terms of a collective agreement
applicable to them. The rate paid to each buyer is influenced by a
number of factors which are not racially based. These factors are the
rate at which the individual started. The performance of the employee,
the attitude of the individual concerned and the increments that had
been given to the employee over a period of time.
90. Usually management would set a guideline for the allocation of
increases. The line manager would be entitled to deviate a few
percentage from the norm; either upwards or downwards. Top
management was required to approve the increases. Race was not
taken into account in approving increases.
91. During the course of crossexamining Mr Gie, Mr Cheadle was in
possession of an undisclosed document. While addressing me on the
right to put the document to Mr Gie, Mr Cheadle disclosed the content of
an undisclosed document to me in such a way that I was left in no doubt
as to its contents and its potential relevance to the case.
92. In the result I deferred my decision to hand in the document although
the prejudice had been caused, and allowed Mr Cheadle to cross
examine on the issue whether Golden Arrow had conducted a formal job
42
evaluation akin to the Peromnes job evaluation. The document now
forms part of the record but the objection stands.
93. Mr Gie stated that in 1996 there had been a grading of senior staff. The
system that had been used was the “JEManager”. It follows a similar
process to the Peromnes system. It permits a conversion into
Peromnes, Hay or the Paterson systems. The results were not used in
relation to payment of salary. The system was not applied to Mr Beneke
nor to Mr Louw.
94. Mr Gie stated that there was a similarity between what Mr Beneke was
earning in January 1991 and white males who worked in companies
who used the Peromnes system and who participated in the FSA
survey.
95. The JE manager evaluation covered 33 managers. The subjects
ranged from the human resources manager at grade JE154 (Peromnes
6) to the assistant foreman mechanical, grade JE 47 (Peromnes 14).
The evaluation was done, says Mr Gie, to address unhappiness about
the allocation of company vehicles, ie the “perk car”, the company car
and company bakkies. Messrs Louw and Beneke do not feature in the
document setting out the JE job grading. Mr Gie said that the JE
43
evaluation was not disclosed because it was not relevant.
96. Mr Gie was taken through the assessment forms relating to Mr Louw
and Mr Beneke and conceded that there was little difference but said
that Mr Louw’s attitude counted against him.
97. Mr Jurgens Human was employed by City Tramways in 1979. He was
entrusted by Mr Brice to do a variety of jobs. In 1990 he was involved in
the appointment of Mr Beneke and a Mr Muller. It started when he was
given a mandate to employ two persons. He was instructed that the
company required a warehouse supervisor/buyer and a warehouse
supervisor.
98. The buyer was to be trained in all aspects with the prospect of moving to
management level. The company sought a neat person with higher
education, people skills and integrity. The personnel department
engaged an outside recruitment agency. The names of 3 or 4 persons,
on a short list for the buyer’s job, were given to Mr Human. He
interviewed them. After consideration, Mr Human offered the job of
buyer to a coloured man whose name he does not recall. The man
laughed at the offer of a salary of R2500 pm and turned the job down.
The job was then offered to Mr Beneke at R2300. Mr Beneke was
44
prepared to start at this salary. Mr Beneke had no experience in the
motor industry. Mr Human said under crossexamination that he did not
have more details about the career path or the prospects intended for
Mr Beneke.
Evaluation
Equal pay for work of equal value
99. Has it has been established objectively by the applicant that the jobs of
a buyer and a warehouse supervisor are jobs of equal value and that
the failure, at least since 11 November 1996, to pay the applicant the
same salary as that paid to Mr Beneke amounts to unfair discrimination
on the basis of race as contemplated by item 2(1)(a)?
100. First as to onus. Golden Arrow has put up no defence, excuse, special
pleading or justification for paying Mr Beneke a different wage to that
paid to Mr Louw. An explanation is provided in the alternative but not as
the main defence. This being so Golden Arrow does not attract an onus
proper.
101. To succeed the applicant must convince this court on a balance of
probabilities that the job of a buyer and a warehouse superviser at
45
Golden Arrow, not necessarily elsewhere, are of equal value. This
presupposes that they are not the same job.
102. Are the two jobs of equal value? Mr Louw stated that he believed that
they were of equal value. Mr Gie stated that they were not of equal
value. The job of a warehouse supervisor was larger than a job of a
buyer. It involved supervisory and management functions. It was
regarded as more valuable to Golden Arrow. Mr Gie is supported by the
assessment practice which evaluated a warehouse supervisor’s
supervisory and development skills. It is not entirely clear why the
assessment practice was said not to be linked to remuneration but little
turns on it.
103. I find that on the probabilities I prefer the evidence of Mr Gie to that of
Mr Louw essentially because Mr Gie has a better, although also a self
interested, perspective of Golden’s Arrow’s operations as a whole and is
able to make a wellinformed assessment of job sizes.
104. But I need not, and do not, rely entirely on Mr Gie’s testimony on the
relative values of the jobs of a buyer and warehouse supervisor. I may
properly rely on the evidence of the independent expert, Mr Steer. See
Hatward v Cammell Laird Ship Builders Ltd [1984] IRLR 463 (IT). I
46
should mention that in seeking to measure jobs of equal value we are
not looking for absolute precsion. Cf Capper Press Ltd v J B Lawton
[1976] IRLR (EAT) 366 and Roger Benedictus and Brian Bercuson
Labour Law and Materials 200.
105. Mr Steer’s evidence is open to slight criticism. I have made mention of
some aspects. His conclusions as regards Mr Vember and its import on
Mr Louw’s treatment does not constitute expert opinion. But Mr Steer’s
testimony stands on firm ground regarding his expert opinion on the
application of the Permones test and its implications. At best for Mr
Louw there is at least one Peromnes grade difference between the size
of a buyer’s job and a warehouse supervisor’s job.
106. I conclude that the applicant has not succeeded in demonstrating that
the two jobs, on an objective evaluation, are jobs of equal value. It is
therefore unnecessary to delve into the reasons, causes or motivation
for the difference in wages. It does not mean that the difference is not
attributable to race discrimination. It does mean that racial discrimination
has not been proven.
107. I turn to consider whether the applicant may show and whether he has
shown that the two jobs, valued subjectively, were as jobs of equal
47
value. In doing so I am aware that there may be a fine line between
objective and subjective assessment. See also the comments by L
MeintjiesVan der Walt “Levelling the `Playing’ Fields” 1998 (Vol 19) ILJ
2233 at 29.
108. In his closing arguments, Mr Cheadle, who is ever resourceful, proffered
an argument which must receive serious consideration. He submitted
that even if the jobs of buyer and warehouse supervisor were objectively
different, Golden Arrow, subjectively regarded them as of equal value
and therefore, for purposes of this case, the applicant has shown them
to be work of equal value.
109. The factual backing for this submission is the common cause facts that
Beneke did not receive an increase in wages (and I assume that he also
did not receive additional benefits in kind) when he acted as warehouse
supervisor nor when he was formally confirmed in this post. Assuming
that it is permissible to do this, I am immediately confronted by the
problem of subjectivity. If one is going to value jobs on the basis of
subjective criteria can one draw objective conclusions from them?
Should one not accept that if there is illogic or subjectivity one side of
the equation, one may expect the same on the other side. This may
explain the difference in wage of the two incumbents.
48
110. Equal pay for equal work and equal pay for work of equal value are
methods of logically making inferences that (or so the applicant alleges)
the difference between two jobs is due to unfair racial grounds. Destroy
the logical basis of this exercise and the result becomes random and
unreliable for proving that the difference is based on race.
111. I accept the evidence of Mr Gie concerning the value which Golden
Arrow places on the jobs viewed from the subjective perspective of
those who manage the company. Mr Cheadle submitted that I should
not accept the credibility of Mr Gie. Mr Gie was rattled by the discovery
of the JE manager evaluation. But the JE manager evaluation did not
have the explosive content which might have been expected. I accept
the evidence of Mr Gie generally.
112. No evidence was led as to the reliability of the JE manager system. Nor
were its apparent divergence from the Peromnes system explained. Its
apparent unreliability merely makes it more difficult to doubt Mr Gie’s
subjective assessment of the value of the two jobs.
113. There is no evidence to support the inference that subjectively the two
jobs concerned are of equal value in the eyes of Golden Arrow.
49
Disproportional salaries
114. Mr Cheadle sought to persuade me to draw an inference of racial
discrimination from the difference in salaries and their alleged
disproportionality regarding the value of the two jobs. See para 2.8 of
the applicant’s statement of case.
115. For present purposes I will assume that the alleged disproportionality
came into existence on the date that Mr Beneke was confirmed in the
post of warehouse supervisor. Both he and Mr Louw occupied the same
job or job description prior to this event.
116. On the date of Mr Beneke’s confirmation 15 th June 1994 he was paid R
3385. R 2130 was paid to Mr Louw. The difference amounts to
R1255. Calculated as a percentage of Mr Beneke’s salary it amounts to 58,9%.
117. I also assume that the basis of the alleged unfair labour practice is the
failure of Golden Arrow to close the alleged disproportionate gap to one
which is proportionate and that the difference may constitute
impermissible discrimination on the basis of race.
50
118. In order to consider drawing any appropriate inference one needs to
know what was “proportional” ie what did the employer objectively or
subjectively regard as appropriate wages for its buyer and its warehouse
manager. I have Golden Arrow’s view. I do not have evidence of
another appropriate wage.
119. I also assume that this argument is advanced on the premise that the
jobs of buyer and warehouse supervisor are different. Assuming this
line of reasoning is appropriate is there evidence from which I can draw
an inference of racial discrimination? Mr Steer attested, which I accept,
that there can be up to 105% difference between a job two grades apart,
this applies with the same or more force here. Even if the jobs are one
grade apart it cannot be said that the salaries for the warehouse
supervisor’s job is disproportionate. At least not on the evidence
presented to me.
120. I accept the testimony of Mr Human. He was an honest, candid witness
a straight arrow. Although the passage of time left its mark. The fact
that City Tramways was prepared to offer R 2500, that is
R 200 more to a coloured man for the position of buyer than Mr Beneke indicates
that the question of potential was taken into account here. It also indicates that
51
there was no prejudice against the appointment of a coloured man with potential.
However it does not mean that MultiSuppliers did not discriminate against Mr Louw
as regards his salary on the ground of race.
121. I am unable to find that the salary paid on 15 June 1994 to Mr Beneke
as warehouse supervisor and that paid to Mr Louw was
disproportionate. I am therefore unable to draw any inference of racial
discrimination.
Other proof?
122. A South African jury of reasonable men and women would, I think, find
that Mr Louw has been subjected to discrimination at an early stage of
his career. This court may take judicial knowledge of a system of
institutionalised racial discrimination which also permeated the world of
employment and influenced the levels of jobs and the rate of pay. The
threshold salary, if there was discrimination, would dog an employee for
years. Mr Steer says as much as does Mr Brice.
123. That there was discrimination and its extent is to be seen from the
Peromnes pay survey for some clients of FSA using this system in Cape
Town in February 1991. The pay survey was the last FSA pay survey to
52
distinguish between employees on the grounds of race. Doubtless this
practice will be resumed following recent legislation. The difference
between white male employees and coloured male employees in the
Cape Town area was 6.1%, at least according to Mr Steer. Mr Steer
says that the group of employers surveyed would have been the more
sophisticated employer but they clearly discriminated on the basis of
race.
124. Is it permissible in our law for a grievant to compare himself with the
hypothetical “Peromnes man”? MultiSuppliers did not use the Peromnes
system nor were they clients of FSA. But was MultiSupplier an island of
equality in a sea of inequality? Did the FSA pay survey give rise to any
prima facie inference about the underlying foundation of MultiSuppliers’s
remuneration policy in 1991? If so, is there any explanation which rebuts
such a prima facie inference? And, if there was discrimination on racial
grounds, was it still subsisting when Golden Arrow took over operations
and was it present on 11 November 1996 when the LRA of 1995 came
into operation? Were steps taken to close and eliminate the gap?
125. I am precluded from deciding whether there is any merit in this line of
attack. First because it was not the applicant’s case although it could
possibly have been put forward. The applicant was competently
53
represented in every respect but did not seek to plead nor pursue this
line of attack. The broad basis of his claim was the residual unfair
labour practice jurisdiction but he narrowed the issues down to equal
pay for work of equal value and the alleged disproportionality of Mr
Beneke’s salary.
126. Secondly although the FSA pay survey danced tantalisingly like an
attractive fly above the trout waters, the inhabitants lurking below were
disdainful of it. The applicant did not seek to exploit the possibilities,
assuming that he could have done so with a suitable amendment to his
pleadings, when the boon fell into his lap. The evidence elicited from Mr
Steer about the FSA pay survey under crossexamination was cautious
and tentative. The matter was not explored with Messrs Brice and
Human.
127. It was the applicant’s right to confine the issues well within the
boundaries of the unfair labour practice definition. There was ample
time and opportunity to deal with the FSA pay survey as proof of
discrimination but it was not ventilated.
128. Golden Arrow did not rise to the FSA bait. They were not obliged to as it
was not the applicant’s case. See the remarks in Administrator,
54
Transvaal, and others v Theletsane and others 1991 (2) SA 192 (A)
at 196HJ which, although they relate to motion proceedings have, in my
view, some application here. Golden Arrow likewise was not obliged to
“anticipate and counter possible unstated contentions” concerning the
applicant’s complaint.
129. It would not be fair to Golden Arrow to decide the matter on the FSA pay
survey basis. I am, for good and proper reasons, restricted to trying the
lis raised by the applicant.
130. In the circumstances I find that the applicant has not acquitted the onus
of proof resting on him. Justice however requires that I order absolution
from the instance and not finally dismiss the applicant’s application.
131. The parties were ad idem that in this case costs should follow the result.
The applicant will be ordered to pay the respondent’s costs.
132. I would be greatly remiss if I did not express my gratitude to Mr Cheadle
(and Mr Steenkamp) and Mr Freund on the other side for their incisive
and helpful arguments in this matter and for sharing their insights into
the law of discrimination of foreign jurisdictions with the court.
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133. In the premises:
134. Absolution from the instance is ordered.
2. The applicant is ordered to pay the respondent’s costs.
DATED AND SIGNED ON THIS ............ DAY OF NOVEMBER 1999.
....................................
JUDGE A A LANDMAN
LABOUR COURT OF SOUTH AFRICA
Date of Hearing : 2, 3 & 4 February 1999;
24, 25, 26, 27 & 28 May 1999;
8, 9, 11 & 12 November 1999
Date of Judgment : 23 November 1999
For the Applicant : Mr M H Cheadle (assisted by Mr A J
Steenkamp) of Cheadle Thompson and Haysom.
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For the Respondent : Adv A J Freund instructed by Mr P
Faber of Sonnenberg Hoffman and
Galombik Inc.
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