IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

D972/2018
Not Reportable

In the matter between:

ILEMBE DISTRICT MUNICIPALITY  			APPLICANT

and 

SIBUSISO CHARLES NDWANDWE 			FIRST RESPONDENT

THEMBELIHLE PROMISE MANQELE			SECOND RESPONDENT

LUCY THEMBISILE DVUBA				THIRD RESPONDENT

MDUDUZI BRIAN GUMEDE				FOURTH RESPONDENT

COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 			FIFTH RESPONDENT

LYNETTE DHLOMO N.O.					SIXTH RESPONDENT 

HEARD: 	25 MAY 2022
DELIVERED: 22 June 2022

JUDGMENT

B. Purdon AJ

Introduction:

[1]	This is an Appeal in terms of Section 10(8) of the Employment Equity Act (Act No. 55 of 1998) (“the EEA”) against the whole of an arbitration award handed down by the Sixth Respondent dated the 25th of February 2018 (“the award”). 

Background:

[2]	In terms of the award the following relief was granted:

“6.1.	I declare that the Applicants perform similar work and work of equal value with that of their comparators, SCM Clerks. 

6.2.	The conduct of the Respondent in placing the Applicants on Level 10 whilst their SCM staff remained at Level 08 constitutes unfair discrimination on arbitrary grounds. 

6.3.	The Respondent is ordered to place the Applicants on Level 08 and on the top notch thereof, retrospectively to 19 July 2016.

6.4.	The Respondent shall implement the Order in paragraph 6.3. above by no later than the 31st of March 2017”. 

[3]	The issue that the Commissioner, the Sixth Respondent, was to determine was whether there was unfair discrimination against the First to Fourth Respondents (“the individual Respondents”). 

[4]	It is common cause that the individual Respondents were employed in the Finance Department of the Applicant. 

[5]	It is also common cause that they were remunerated at Post Level 10 on what was described as “the van der Merwe wage curve”. 

[6]	They alleged that their colleagues employed in the Supply Chain Management Department of the Applicant were remunerated at Post Level 08 of the van der Merwe wage curve, which attracted a higher rate of remuneration.

[7]	The individual Respondents claimed that given that they performed comparable work to the employees in the Supply Chain Management Unit, but received lower remuneration, that this constituted discrimination. 

[8]	It was essentially the defence of the Applicant during the arbitration proceedings that the individual Respondents were paid the salaries determined by their contracts of employment. 
 
[9]	That remuneration was further prescribed by an applicable collective agreement and also that the system of remuneration sought by the individual Respondents was no longer valid having been abolished by further collective agreement. 

[10]	It was contended that the Applicant had unlawfully discriminated against the individual Respondents on an arbitrary ground in terms of Section 6(1) of the EEA. 

[11]	It is evident from a reading of the award that the matter proceeded without the Sixth Respondent (the Commissioner) having established the alleged ground of discrimination on which the individual Respondents’ case was premised. 

[12]	It is common cause that it was not one of the specified or identified grounds enumerated in Section 6(1) of the EEA. 

[13]	It follows that no evidence was led in terms of which the individual Respondents averred that their discrimination was based on any particular ground, much less that it was premised on an impermissible ground, analogous to the specified grounds listed in Section 6(1). 

[14]	The Applicant further averred that the individual Respondents had different job descriptions to their comparators, that there were different requirements for each of the jobs, and that there was a rational connection between the job function requirements and the salary levels accorded to the posts. 

[15]	On the peculiar facts of this case, the individual Respondents were on the van der Merwe wage curve in terms of a “personal to holder Policy” whereas the Task Grading System, which determined the remuneration of comparator group, did not distinguish between classes of Clerks. There was thus a justifiable reason for the differential pay. 

[16]	It is clear ex facie arbitration award, that the Commissioner failed:

[16.1]	To identify the alleged ground of discrimination;

[16.2]	To hear any evidence concerning the reasons for the alleged
discrimination; and

[16.3]	To establish upon what “arbitrary” ground the further Respondents 
relied. 

[17]	The Commissioner clearly failed to appreciate the requisite legal standard to be applied, more particularly that set out by the Labour Appeal Court in K. Naidoo & Others v Parliament of the Republic of South Africa [2020] 41 ILJ 1931 (LAC). 

[18]	In this appeal, the Respondents relied on the “broad compass” approach seen inter alia in Kadiaka v Amalgamated Beverage Industries [1999] 20 ILJ 373 (LC). 

[19]	This approach was rejected by the Labour Appeal Court in Naidoo supra. 

[20]	The Appeal must therefore succeed. 

Condonation:

[21]	The Applicant sought condonation of the late noting and prosecution of the appeal. 

[22]	In terms of Section 10(8) of the EEA, a person affected by an Order made by a Commissioner of the CCMA may appeal to the Labour Court against that award within fourteen days of the date of the award. 

[23]	That sub-section empowers the Labour Court to extend the period within which that person may appeal, which means that this Court may condone a late noting and prosecution. 

[24]	In the event the Applicant was approximately one and half month’s late in noting the appeal (a period which also contained at least five public holidays). 

[25]	The Applicant gives a sufficient explanation of the delay. 

[26]	The Applicant sets out the steps it took upon receipt of the award, being initially under the misapprehension that the matter would proceed by way of review proceedings in terms of which the applicable time limit would be six weeks. 

[27]	In the Court’s opinion, although the delay is not insignificant, the Applicant has accounted for such delay, and most importantly, has demonstrated it has overwhelming prospects of success in the appeal. 

Costs: 

[28]	The matter was originally scheduled for hearing when the representative of the individual Respondents filed what she termed “Concise Heads of Argument” which contended that the Court did not have jurisdiction as the dispute was not one contemplated in sub-section 10(6)(a) of the Employment Equity Act. 

[29]	Given that this point was raised at the proverbial eleventh hour, the Applicant’s representative sought and was granted an adjournment to consider the point and to file submissions in response. 

[30]	In the event, the individual Respondents subsequently and advisedly withdrew the point. 

[31]	The Applicant did not seek a cost order in respect of the main appeal, but sought an Order for costs in relation to the costs incurred by the Applicant for what turned out to be an unnecessary adjournment of the first hearing.

Order:

In all the circumstances, the Court makes the following Order:

[1]	Condonation of the late filing of the Appeal is granted. 

[2]	The Appeal is upheld. 

[3]	The award of the Sixth Respondent is substituted with the following:

“The claim is dismissed”. 

[4]	The First to Fourth Respondents are ordered, jointly and severally, to pay the Applicant’s wasted costs occasioned by the adjournment of the matter on 25 May 2022. 

B. Purdon AJ 
Acting Judge of the Labour Court of South Africa 

Appearances 
For the Applicant: Advocate L Naidoo instructed by Matthew Francis Incorporated 
For the First to Fourth Respondents: Advocate V. Singh instructed by Dludlu Attorneys