In Passenger Rail Agency of South Africa v Hoyo [2025] 2 BLLR 160 (LAC) the Labour Appeal Court (LAC) overturned the Labour Court’s (LC) finding that there had been unfair discrimination based on race. In this case, the employee alleged unfair discrimination because of unequal pay on the ground of race in that his subordinates earned more than he did. The employee had been employed as Production Manager in 1999 and soon after that appointment he acted in the role of Maintenance Operations Manager but was not paid an acting allowance. In 2016 he lodged a grievance alleging that he should be paid an acting allowance and complaining that his subordinates earned more than him. He was requested to provide his job profile so that an evaluation of the job could be conducted to determine the appropriate grading. The employee failed to do this and instead referred a discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and subsequent to that a claim was instituted in the LC. The LC found that the employee was a victim of inherited apartheid discrimination because his two subordinates were white male employees, and the employer had not taken sufficient steps to reduce the salary disparity. Compensation was accordingly awarded but the quantification was postponed to a later date.
The employer then took the matter on appeal. The LAC noted that the employer is required to either prove that there was no discrimination or, if there was discrimination that such discrimination was rational or fair. Furthermore, for an employee to succeed in a claim for unequal pay the employee needs to identify a comparator and prove that the reason for the difference in pay is a prohibited ground. In this case, the employee identified two of his subordinates who were white males as his comparator. There was, however, no evidence that the comparators performed work of equal value. In this regard, no evidence was led to show that the employee’s work was the same, identical or interchangeable with his subordinates or that it was substantially the same or sufficiently similar. In fact, the employee actually occupied a more senior role to his subordinates. The LAC noted that regs 5 and 6 of the Regulations to the Employment Equity Act 55 of 1998 set out the criteria to be used in determining whether work is of ‘equal value’. Regulation 6 provides that in considering whether work is of equal value, the relevant jobs must be objectively assessed taking into account the following criteria –
‘(a) the responsibility demanded of the work, including responsibility for people, finances and material;
(b) the skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal;
(c) physical, mental and emotional effort required to perform the work; and
(d) to the extent that it is relevant, the conditions under which work is performed, including physical environment, psychological conditions, time when and geographic location where the work is performed.’
The employee did not lead any evidence to show that any of these criteria were met.
It was common cause that the salaries of the employee’s subordinates were higher and had increased after their transfer of employment from Transnet. The LAC found that there was no evidence that the reason for the pay discrepancy was based on race or any other prohibited ground. The fact that the two subordinates had been employed during the apartheid era did not automatically mean that the difference was based on race. The employer had argued that the reason for the differentiation was that the subordinates and a number of other employees were transferred to it from Transnet after there had been a scarce skills benchmarking exercise which led to some significant increases in salaries. After the transfer they continued to receive salary increases given to employees in their bargaining unit with no cap on remuneration. There was, however, no objective evidence to support that these salary differentials were as a result of race. Furthermore, it was not only white employees who had transferred from Transnet.
The appeal was accordingly upheld, and the orders of the LC were set aside. There was no order as to costs. The LAC remarked that the employer remains obliged to take measures to progressively reduce income differentials.
The appeal had been brought late and hence the employer sought condonation for its delay. In this regard, there was a 47-day delay in filing the power of attorney and a 24-day delay in filing the heads of argument. The late filing was condoned after given consideration to the reasons for and extent of the delay and the potential prejudice which would be suffered if condonation was not granted.
In Government Printing Works v Public Service Association and Another [2025] 2 BLLR 112 (LAC), an employee was moved from a position of chief security officer to chief administrative officer. The employee alleged that the reason for the move was comments by the Minister of Home Affairs, which allegedly amounted to discrimination on arbitrary grounds. The employer argued the move was as a result of the fact that the employee was not registered with the Private Security Industry Regulatory Authority and thus could not perform security duties.
When the employee instituted a claim under the Employment Equity Act 55 of 1998 in the Labour Court the employer filed its statement of defence about 84 days late. The Labour Court (LC) refused to grant condonation on the basis that there was no satisfactory explanation for the delay. On appeal, the LAC found that the delay should have been condoned on the basis that the matter had good prospects of success despite the fact that there was an inadequate explanation for the delay. The LAC accordingly set aside the LC’s refusal to grant condonation because the LC had ignored the prospects of success. It was noted that when deciding whether condonation should be granted or refused, the LC had to be fair to both sides with reference to all relevant factors, none of which are decisive. Therefore, condonation may be granted where there are good prospects of success even if there is no adequate explanation for the delay. Prospects of success can only be ignored if there has been a flagrant disregard of the court rules. It was noted that a court would need to carefully justify its decision if it chose to ignore prospects of success. In this case, the LC did not justify why it ignored prospects of success and, therefore, the LAC could interfere with the LC’s decision. It was found that the delay was not egregious, and the delay could mostly be attributed to the legal representatives. The appeal was upheld, and the late filing of the employer’s statement of defence was condoned.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2025 (April) DR 39.
