Employment law update – Absolution from the instance and equal pay disputes

December 1st, 2017
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Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

The case of Sethole and Others v Dr Kenneth Kaunda District Municipality (LC) (unreported case no JS 576/13) (Snyman AJ) concerned a case of absolution from the instance. Snyman AJ found that an applicant would be absolved from the instance if they failed to make out a prima facie case. In deciding absolution from the instance, the court had to determine whether the applicant had the onus to make out a case. Thus, absolution from the instance is inextricably linked with the party who bears the onus.

This case concerned a complaint about a differentiation in remuneration between the applicants and employees in another position at the employer. The applicants alleged that they performed the same or similar work to other employees, but were paid less and received lesser benefits. According to the applicants, this difference was based on an unlisted ground. However, it was not apparent from the evidence what this unlisted ground was.

This dispute took place prior to the amendments to the Employment Equity Act 55 of 1998 coming into force. In terms of the amendments, it is clear that if the discrimination is on a listed ground then the onus is on the respondent. However, if the discrimination is on an unlisted arbitrary ground the applicant bears the onus. Snyman AJ considered what the position was prior to the amendments (as these amendments were not retrospective) in order to determine whether the onus was on the applicants in this case to make out a prima facie case. Snyman AJ found that the position prior to the amendments is the same as  ss 6(1) and 11, together with the introduction of s 6(4), gave written manifestation to the way in which the Labour Court (LC) had already been interpreting and applying ss 6 and 11 prior to the amendments. In Snyman AJ’s view, the applicants in this case had the onus to establish the existence of discrimination on an unlisted ground and were, therefore, required to make out a prima facie case in order to escape absolution from the instance.

Snyman AJ referred to a three level inquiry when establishing whether differentiation amounts to unfair discrimination. The first level of the inquiry is to establish whether differentiation exists that could potentially give rise to discrimination. The next level of the inquiry is whether the differentiation amounts to discrimination. Finally, the third stage is whether the discrimination is unfair.  Snyman AJ was of the view that in this case the applicants had only satisfied the first level of the inquiry, that is, they had shown that there was differentiation, but they had not shown that this differentiation constituted discrimination and that such discrimination was unfair. The applicants compared their positions to another position that was a specialised position, graded higher and required a degree of speciality and higher qualifications. Furthermore, they contended that this position was an unlawful position. Snyman AJ remarked they could not legitimately use a comparator that they alleged was unlawful.

The court held that the applicants had failed to identify and plead the actual basis of the alleged discrimination. Furthermore, they did not show how their dignity or right of equality or personal attributes and characteristics had been impaired or prejudiced. Thus, it was found that a prima facie case had not been made out by the applicants. Snyman AJ concluded that this was a grading dispute, which may be an unfair labour practice but was not an unfair discrimination case. The application for absolution from the instance was accordingly granted. A costs order was made against the applicants as Snyman AJ was of the view that their conduct was opportunistic and aimed at obtaining a re-grading of their positions and a pay increase.

Deductions from remuneration

In Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others [2017] 10 BLLR 1062 (LC), the applicants refused to accept a re-assignment of their duties and temporary transfer to another unit in accordance with the Public Service Act 103 of 1994 and lodged a grievance. They were informed that they would not be paid if they did not report for duty. The applicants did not report for duty and the employer then advised the applicants that this unauthorised absence would be treated as leave without pay and that the employer intended to deduct the amounts from their salaries in respect of the period in which they did not work. Before making the deductions, the applicants were requested in writing to make submissions as to their unauthorised absence and why deductions should not be made from their salary for failing to report for duty. No representations were received and leave without pay was then implemented and deducted from their salaries.

The applicants argued that the deductions were unlawful and were in breach of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Public Service Act. They sought an order directing the employer to repay the money.

The LC found that the applicants had not reported for duty, which amounted to absconding. Furthermore, the applicants had refused to regularly tender their services even before they were temporarily placed in the new units and thus the failure to attend work was not a reaction to the temporary placement. It was held that the employer was entitled to not pay the applicants in respect of periods during which they refused to work. This is because the applicants had breached their employment contracts by failing to perform their obligations and thus the employer was entitled to implement the ‘no work, no pay’ principle.

The LC considered s 34 of the BCEA and the requirement to follow a proper procedure. In this case, the employees did not agree to the deductions but they had been given a reasonable opportunity to show why the deductions should not be made and there was no evidence that they had in fact responded with their submissions. Cele J held that the employer had followed a fair procedure in making the deductions and dismissed the application with costs.

This article was first published in De Rebus in 2017 (Dec) DR 56.

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