City of Cape Town v Nevin and Others (C 445/2019; C447/2019) [2022] ZALCCT 29; [2022] 11 BLLR 1016 (LC) (3 June 2022)

Of interest to other judges

The Labour Court of South Africa,

held at Cape Town

Case : C 445/2019 & C447/2019

In the matter between:

CITY OF CAPE TOWN

Applicant

and

GARY NEVIN

First Respondent

SOUTH AFRICAN LOCAL

GOVERNMENT BARGAINING COUNCIL

Second Respondent

COMMISSIONER DE VLIEGER-

SEYNHAEVE (N.O.)

Third Respondent

COMMISSIONER RIEKERT (N.O.)

Fourth Respondent

Date of Set Down: 13 April 2021

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be at 10H00 on 3 June 2022

Summary: (Review – Unfair Labour Practice Claim – Omission constituting unfair labour practice arising at the inception of employee’s employment – not an ongoing unfair labour practice -Condonation accordingly required for late referral – Condonation ruling declaring condonation unnecessary set aside – – Claim not falling within s 6 of Employment Equity Act –

Applicant’s framing of his claim as an unfair labour practice under s 186(2)(a) of the LRA not disputed in principle and applicant entitled to pursue a claim on that basis, subject to his late referral being condoned – Condonation - on reconsideration

condonation refused – Consequential substantive award on unfair labour practice reviewed and set aside for lack of jurisdiction)

JUDGMENT

LAGRANGE J

Introduction

[1] This is a review application of both a condonation application and an award in respect of an alleged unfair labour practice under section 186 (2) (a) of the Labour Relations Act, 66 of 1995 (‘the

LRA’), relating to an alleged omission to by the Applicant (‘the City’) to give effect to its Remuneration policy

when determining the starting salary of the first respondent, Mr G Nevin (‘Nevin’).

[2] When this application was launched, Nevin was still employed by the City’ as a Project Manager within its Property Management Department.

[3] Nevin represented himself in the arbitration proceedings and in the review proceedings. The City was represented by its Employee Relations Officer, Ms F Sulaiman, in the arbitration proceedings and by attorneys in the review proceedings. The parties agreed that the matter could be dealt with on the papers and heads of argument without submission to an oral hearing. Both parties filed two sets of argument.

Brief chronology

[4] Nevin commenced employment with the City on 1 February 2016 after accepting an offer of employment dated 22 January 2016. He had previously worked for the City a number of years until 2012. Nevin was appointed to a Project Manager post with effect from 1 February 2016 and the Total Cost of Employment (TCOE) remuneration package of R 610 071.00 per annum at Task Grade T14A.

[5] At the time of Nevin’s appointment there were three other project manager posts in the same organisational unit of the City’s Special Projects and Strategic Assets branch.

[6] In May 2016, Nevin obtained a document which showed the salaries of the other three project managers from which he inferred that a different process had been used to determine his starting salary compared with that of the others. He claims that he became aware at that time of the alleged unfair labour practice arising from this.

[7] Nevin prepared a table showing the remuneration he was receiving as a project manager and the task grade he was on compared with the other project managers in the branch. The main features of his table are set out below:

Comparator Name Position PS group Work experience Age TCOE[1]

Nevin

Nevin Project manager T14 A

COC-24 years 56/7 610 071

Comparator1 Davids Project manager: Special Projects

T15 C COC-10 years 58/9

815870

Comparator 2 Mukori Project manager: Special Projects

T15 B COC- 8 years 40/1

749058

Comparator 4 Emsley

Project manager T15 B COC 2 years

UK-10 years 37/8 749058

[8] On 28 July 2016 Nevin emailed the head of remuneration in the City’s

capital HR department, Ms M Pregnolato (‘Pregnolato’) requesting an interview to obtain information about the application

of the City’s Remuneration Policy to his “recent appointment”. Elaborating on his inquiry, he stated:

“To set the context of my inquiry, I would like to know how the provisions of the Remuneration Policy should have been applied to my appointment to the post of a Project Manager on the commencement notch of T14 Grade salary scale.”

He briefly outlined his previous experience and that he sought an opportunity to motivate that the policy should be applied to his

situation, noting that his probation ended on 31 July 2016.

[9] The reply he received was that because he had signed his contract of employment his remuneration could not be adjusted except in terms of performance increments as provided for under the individual performance management policy. He was advised to discuss any concerns about his remuneration with his line manager.

[10] Shortly before this exchange, on or about 21 July 2016, Nevin’s line manager, Mr M Sims (‘Sims’) had also established from Pregnolato that an application could be made for Nevin’s advancement to a higher salary position.

[11] Just over a year later, on 22 August 2017, branch manager, Mr Sims, signed a report recommending that the post of Project Manager attached to the position occupied by the Nevin be advanced from Job Grade T14 to Job Grade T15, in terms of the employer’s Advancement Policy. On 20 October the said Advancement was authorised by the relevant Delegated Authority, and the advancement was implemented effective 1 November 2017.

[12] Nevin’s TCOE was then adjusted from T14A1 to T15A1 on the employer’s schedule of pay points applicable at the time, giving him an increment of R 48, 938 on his annual salary.

[13] On 21 June 2018 the Director: Property Management, Ms Gelderbloem, signed a report titled “Scarce Skills and Parity Review of Project Manager Mr G Nevin (10006740): Property Transaction Management: Property Management”. Section 5 of said report titled Recommendations states as follows:

“5.1 That the Executive Director: Corporate Services approves an appropriate salary adjustment for Mr G Nevin(10006740), occupying the position of Project Manager: Special Projects in terms of the Scarce Skills provision of the Remuneration Policy, section 10.7(b).

5.2 That the salary adjustment be from the current level of T Grade 15A1 to 15C1 from 1 July 2018”.

[14] The Director: Property Management supported the recommendation, and commented in writing: “supported in order to promote parity across job contents & purpose”. Section 6.4 of the report dealing with the financial implications of the recommendation stated that funds were available in the operating budget provisions. However, for reasons unknown, the recommendation was not implemented.

[15] On 28 September 2018, Nevin referred an unfair labour practice to the relevant bargaining Council and on 2 October 2018 applied for condonation of the referral after the 90-day period section set out in section 191(1)(b)(ii) of the LRA.

The condonation ruling

[16] The condonation ruling was issued by the third respondent (‘the first arbitrator’) and the unfair labour practice award by the fourth respondent (‘the second arbitrator’).

[17] The first arbitrator accepted Nevin’s submissions that the dispute originated in February 2016 when he was employed and was an ongoing one ever since. The arbitrator was mindful of the possibility that the dispute might not be about an unfair labour practice but correctly found it unnecessary to decide that issue at the conciliation stage. Following the authority in SA Broadcasting Corporation Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 592 (LAC), the arbitrator concluded that the nature of Nevin’s complaint was that it was a continuous act of alleged unfairness which was perpetuated every month he was paid his remuneration. Accordingly, there was no need for him to apply for condonation.

The unfair labour practice award

[18] The second arbitrator issued a detailed and closely reasoned award. He concluded that the City had failed to follow the prescripts of its Remuneration Policy and, in particular clause 8 of that policy. The provision in question established a benefit and the City’s failure to follow that provision amounted to an unfair labour practice.

[19] Although clause 5.8 of the Recruitment and Selection Policy recommended that an appointment should be made on the minimum pay range applicable to that post, this principle was not an absolute one. The delegated authority responsible for determining the offer had to consider the requirements of clause 8 of the Remuneration policy. The arbitrator found that these consisted of:

19.1 placing the applicant in the correct T level and quartile.

19.2 If the delegated authority determined that the successful applicant should be placed at a level higher than the minimum pay range it should be referred to the remuneration committee.

19.3 The remuneration committee had to review the delegated authorities’ decision in terms of clause 8 by applying the very same principles the delegated authority had to consider.

[20] On the facts, the arbitrator found that:

“34. Considering the guidelines set out in clause 8 of the Remuneration Policy — which must be followed - and in view of the employee's curriculum vitae against them (24 years' experience, a master's degree in City & Regional Planning) it is obvious that placing the employee in T14 quartile I or 2 would be entirely inappropriate.

It would appear that the employee should be at least in quartile 4 of T14. I say at least because as the job the employee applied for is dual graded as T14/T15 a placement in T15C or T15D might have been the appropriate level taking into consideration the employee's years of experience and internal pay equity as a person, with less than half the number of years' experience than the employee, was placed into level T15B. Even the incumbent of the T15C position has far less experience than the employee. The City is enjoined to consider internal pay equity, qualifications, experience and scarce skills in terms of clause 8.3 of the Remuneration Policy. The new dispensation regarding scarce skills has, according to the delegated authority, not yet been finalised or implemented and in any event did not have any bearing on this dispute at the time that the employee's placing in a T level was considered. What was applicable at the time was what is stated in clause 8 of the Remuneration Policy. Further, considering Mr Mike Simms's report (…) the extent of the City's unfair conduct towards the employee is glaring, This report also recommends that the employee's correct T level at the time of the report should have been Tl5C. Obviously this report was not available at the time of the employee's placing at a T level; but the content was available in his curriculum vitae.”

[21] Consequently, the arbitrator concluded that “the City's conduct in refusing to consider the provisions of clause 8 of the Remuneration Policy was grossly unfair”, and ordered the City, through the various functionaries responsible for implementing the policy to discharge their responsibilities under clause 8 of the Remuneration Policy properly and, after considering all the relevant factors, place Nevin on the correct T level and quartile from the date of his employment on 1 February 2016 with the financial advantages that would flow from such placement.

Grounds of review

[22] The City’s grounds of review are summarised below and Nevin’s responses are summarised below

The City’s contentions

[23] The City argues that the arbitrator should not have treated Nevin’s claim as one that concerned an unfair labour practice which was an ongoing one from the date of his appointment on 1 February 2016. Instead, she ought to have realised that “…he should have referred his dispute before he abandoned it with his advancement application in November 2017”. When he was advanced from salary grade T14 to T15 in November 2017 his original dispute was resolved and ceased to exist.

[24] At best, the alleged unfair labour practice commenced on 1 February 2016 had ended the day before he accepted his advancement in November 2017, which was the latest date on which the 90 day period for referral could have commenced making the referral at least about nine months’ late.

[25] In its written heads of argument, the City also argued that the first arbitrator, who dealt with the condonation application, failed to appreciate the true nature of the dispute, namely one concerned with pay disparity and not an unfair labour practice. This point was originally raised in relation to the arbitration award itself and is discussed below when dealing with the grounds of review relating to the substantive award.

[26] Insofar as the arbitrator had relied on the decision of the Labour Appeal Court in SA Broadcasting Corporation Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 592 (LAC), that reliance was misplaced because that case concerned not only an unfair labour practice dispute, but alternatively an unfair discrimination dispute under the EEA, whereas in Nevin’s dispute there was no claim of alleged unfair discrimination.

[27] The City referred to the case of City of Johannesburg v South African Local Govt Bargaining Council and Others (JR3204/10) (2014) ZALCJHB 85 (10 February 2014) in which the labour court held that an act of demotion, even if it had ongoing consequences, was no different in principle to a dismissal and was subject to the 90 day time limit for referring an unfair labour practice dispute under section 191(1)(b)(ii) of the LRA. On the basis of this decision, the City argues that it is critical to distinguish an unfair act from the consequences of that act. In Nevin’s case the act was his alleged unfair salary grade placement on his appointment. Even though the consequences of that placement continued until November 2017, the act was not repeated thereafter because he was then placed in a different grade thereby superseding his original placement on an entry-level salary.

[28] Expanding on the contention that any dispute Nevin had was resolved by his advancement, the City contends that he had chosen that route instead of filing a grievance or an unfair labour practice, and therefore abandoned his right to use those channels. Furthermore, it argues that Nevin’s “successful application for advancement” should be seen as a novus actus interveniens, which is an event that interrupted the chain of causation that began when he was initially appointed at level T14 because the advancement changed his salary grade. Even if Nevin argued that the consequences of the terms of his original appointment continued after February 2016, once his advancement was approved in 2017 and he was placed on salary grade T15, there was no longer any repetition of the original consequences of his appointment at grade level T14.

[29] By accepting the advancement, Nevil accepted the substantive resolution of his original complaint and proceeded to raise a fresh challenge based on the fact that, despite his advancement, there were still pay differentials between him and his colleagues.

Nevin’s response

[30] Nevin argues that the post advancement process implemented on 1 November 2017 had nothing to do with his unfair labour practice dispute, and claimed that this was understood and accepted by the City.

[31] In support of this, he argues that the advancement process is not one which is applied for by an employee but is a tool within the domain of management, which is used to evaluate a post to see if it warrants advancement to a higher grade. The advancement process was not initiated by himself but by management and he did not have to agree to the process being undertaken, nor did he have to accept its results. Further, Nevin contends there is no element of discretion in the determination of advancement to a new pay point under the advancement policy. By contrast, the determination of the pay point to be attached to a job offer does involve the exercise of discretion.

[32] On the basis of his characterisation of the advancement process, Nevin submits that it was an extraneous event that did not interrupt the causal chain he relies on to prove his unfair labour practice claim relating to the provision of benefits. As such, it had a neutral impact on his claim.

[33] In relation to the continuous nature of the unfair labour practice, the arbitrator was bound by the LAC decision in SABC and, as a matter of precedent, that decision prevails over the Labour Court decision in City of Johannesburg.

[34] Further, Nevin submits that the proposition that the principle in SABC is only applicable to disputes about unfair discrimination claims in terms of the EEA is incorrect, as evidenced by decisions of the Labour Court which have followed the same principle in relation to unfair labour practice disputes.

The arbitration award

The City’s submissions

Jurisdictional challenge

[35] The City argues that after his advancement in November 2017, Nevin’s dispute no longer concerned the alleged failure to apply the Remuneration Policy in a fair manner when he was appointed, but now concerned the unresolved disparity between his level of remuneration and that of other project managers which had increased by then.

[36] Such a claim, correctly construed, was in fact a claim to be paid equal pay for equal value and was a claim that should have been brought under section 6(4) of the Employment Equity Act, 55 of 1998 (‘the EEA’). Accordingly, the dispute should have been referred to the CCMA as required by that Act, as the bargaining council had no jurisdiction to entertain it. In its heads of argument, the City argued strenuously that both arbitrators failed to appreciate the true nature of Nevin’s claim. Although Nevin had framed his claim as one concerning his unfair placement on grade T14 when he was appointed, when measured against the requirements of the Recruitment and Remuneration policy, in truth his dispute was about the inequity of being paid less than his colleagues in the same posts.

[37] It further argues that this could not be the subject matter of an unfair labour practice claim because the EEA specifically deals with equal pay claims, and if Nevin were permitted to pursue such an unfair discrimination claim under the unfair labour practice jurisdiction, that would amount to bypassing the specific mechanism provided in the EEA for advancing and remedying such claims.

[38] In support of this contention, the City cites a number of references in Nevin’s detailed written referral of the dispute, in which he stated, amongst other things:

“1.2 The claim rests on two grounds, namely:

1.2.1 Factual evidence of internal pay inequity, and the unfairness of such inequity

1.2.2 Legal basis for the complainants right to redress for unfair labour practise.

The evidence for 1.2.1 is presented in section 1.4, and the legal arguments in section 2 below.

…

1.4 The context to this dispute is that the applicant has suffered financial prejudice resulting from a situation of inequitable remuneration within a defined organisational unit, the Special Projects & Strategic Assets Branch of the Property Management Department of the City of Town.

1.5 At the time of the applicant's appointment there were three other Project Managers employed within a defined organisational unit, the Special Projects & Strategic Assets Branch of the property management capitalize that Department of the City of Cape Town.

1.6 Subsequent to commencing work the applicant became aware that the three other Project Managers were remunerated at higher levels on the employers' schedule of Total Cost of Employment (TCOE) pay points.”

In addition, the City alludes to portions of the transcribed record where Nevin admits that his complaint arose when he realised there was a disparity between his remuneration and that of the other project managers.

Nevin’s argument

[39] Nevin rejects the idea that the arbitrator was at liberty to determine the nature of the dispute and was bound by the way he had framed it. He readily acknowledges that he could have attempted to proceed with an unfair discrimination claim, but chose to proceed with an unfair labour practice claim instead. Further, he argues that the uncontested facts constitute a sufficient basis to establish an unfair labour practice.

- Other alleged reviewable irregularities in the arbitrator’ reasoning

[40] In the event it is unsuccessful with the jurisdictional challenge above, the City argues that the arbitrator failed to apply his mind to the evidence, to the extent that it amounted to a reviewable irregularity and led him to make findings no reasonable arbitrator could make. The evidence it claims the arbitrator failed to consider was that

40.1 Clause 8 of the Remuneration Policy specifically provides that the normal salary offered to a new employee is the minimum pay range for the post and because Nevin had not worked for the City for a period of four years before his appointment he was correctly treated as a new employee.

40.2 The arbitrator irrationally concluded that noncompliance with the guidelines or factors mentioned in clause 8 of the Remuneration Policy did not automatically make the process unfair.

40.3 Even though the Remuneration Policy does not mention budgetary constraints as a consideration, the arbitrator should have realised that it was an important factor to take account of and there were objective budgetary reasons for appointing all the applicants at the time on the starting notch and Nevin was treated no differently from the others.

40.4 Prior to what the City characterizes as Nevin’s own application for advancement in 2017 it could not have known about his unhappiness or done anything about it.

40.5 In finding that the award would not precipitate a deluge of similar referrals, the arbitrator incorrectly stated that such a claim would have to be referred within 90 days in terms of section 186 (2)( a) of the LRA, whereas in the very dispute before him that time. Had been found inapplicable. Accordingly, other employees also engaged on the minimum salary level at the same time would be entitled to bring their claims dating back to the time of their appointment. It should be mentioned that according to the City, Nevin’s appointment was one of a number of appointments made for the purposes of generating income and the programme was subject to budget constraints which resulted in all appointments being made on the entry salary grade for each job.

Evaluation

The nature of the dispute referred by Nevin

[41] The first point that needs to be made is that Nevin had no difficulty articulating his claim. This was not a case where the employee was uncertain whether their dispute had been referred to the correct forum or was expressing their complaint in terms that essentially described a claim of unfair discrimination under section 6 of the Employment Equity Act 55 of 1998 (‘the EEA’), which is only capable of determination under that Act.

[42] Only a very selective reading of the transcript and of his pleadings could lead one to believe that Nevin was attempting to pursue an equal pay for equal work claim under the EEA. It is true that an attempt could have been made to refer such a claim under that Act, but nowhere does he claim that the remuneration differential between himself and the other project managers is directly or indirectly related to any prohibited grounds of discrimination, which is a requirement of such a cause of action.

[43] His claim is that the City ought to have applied clause 8 of its Remuneration Policy when it employed him, and the failure to do so resulted in him being remunerated on a scale that could not be justified on the factors that should have been taken into account by the City under that policy. Consequently, he claims he was unfairly prejudiced by this by being placed on the entry level grade for the job. It is true that he first became aware that he might not be being paid on an appropriate level when he learned of the salaries of other project managers in the branch he worked in. When his experience and

qualifications was compared with theirs, the significant disparity in his salary grade and theirs indicated to him that something was wrong with his own. He believes that if the City had correctly considered all the factors it should have when determining his salary offer under the policy, his salary would also have been more commensurate with his experience and qualifications.

[44] It is important to note in this regard that the relief Nevin sought in his referral was not that he be placed on the same salary level as any one of the other project managers on the basis that he did work of equivalent value. He sought an acknowledgment that owing to the failure to comply with the principles in the Remuneration Policy for determining a salary offer his right to have his salary offered determined in accordance with the principles of fairness, equity and consistency specifically set out in the Remuneration Policy had been infringed which amounted to an unfair labour practice. He also wanted an undertaking that the employer would perform an assessment in terms of the policy of the appropriate level of remuneration that he should have received from the time he was employed and to adjust his current remuneration taking into account the other changes in his remuneration since his

employment in January 2016. He specifically identified the envisaged process as one that requires the employer to exercise its discretion, thereby falling within the ambit of the nature of an unfair labour practice concerning a benefit, as characterised by the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC). In that case, the LAC made it clear that an arbitrator considering an unfair labour practice claim relating to benefits under section 186 (2)(a) of the LRA is not restricted to consider only entitlements arising from contract or ex lege, but also advantages or privileges granted in terms of a policy or practice subject to the employer’s discretion.[2]

[45] The City did not take issue with Nevin’s own formulation of his unfair labour practice claim in principle, but argued that it was actually an equal pay claim falling under s 6 of the EEA. In the absence of an alternative defence by the City that his claim could not constitute an unfair labour practice relating to the provision of a benefit, even if it was not a claim under the EEA, Nevin’s framing of his claim under s 186(2)(a) was uncontested. Accordingly I am bound to accept that it was common cause that his claim could, in principle, be brought as a dispute about unfair conduct by an employer relating to the provision of benefits, even though I have severe doubts that the facts of his claim do concern the provision of

a benefit.

[46] In short, Nevin’s claim was that the significant salary grading disparity between himself and his peers was a result of the failure to fairly determine his salary offer in accordance with the requirements of the Remuneration Policy. So characterised, he alleged he had been unfairly denied the benefit of having his salary offer determined by that process, and it was not disputed that this could constitute an unfair labour practice relating to the provision of a benefit.

[47] In the circumstances, I must accept that the dispute Nevin referred to arbitration was an unfair labour practice dispute relating to the provision of benefits and the nature of the dispute fell within the arbitrator’s jurisdiction.

Was condonation required when Nevin referred his unfair labour practice dispute on 28 September 2018 ?

[48] It is clear that the unfair labour practice complained of by Nevin was an omission to comply with its Remuneration Policy in the determination of his initial salary offer. Assuming that, if this had occurred, he would have been employed on a higher salary grade from the start, the failure to do so would have had the ongoing consequence that he received less than he otherwise would have each month.

[49] Nevin argues that the City could not rely on the Labour Court decision in City of Johannesburg and that decision was at odds with the SABC decision, which took precedence. To analyse the merits of this argument it is necessary to look at the relevant passages from each judgment.

[50] In SABC the court summarised the dispute before it as follows:

“(2) …The dispute was described as failure or refusal by the appellant to promote or upgrade the grievants and thus committing, inter alia, (i) an unfair labour practice as defined in s 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act); alternatively (ii) discrimination as set out in s 6 of the Employment Equity Act 55 of 1998 on the grounds of qualification and expertise.

(3) In its 'summary of facts' attached to the referral for conciliation, the union recorded that the appellant had in 1998 promoted or upgraded three artisans from a salary scale of 403 to a salary scale of 300 as part of a skills retention plan while the grievants who performed the same or similar work and have similar or better qualifications were not similarly promoted or upgraded. The union also recorded that the result it hoped to achieve at the conciliation was: 'to obtain promotion or upgrading of the individual applicants (grievants) to the salary scale of 300 with immediate effect'; and, 'reasonable and just compensation, including backpay for loss of benefits and salary'. The union furthermore recorded in its referral that the dispute was 'ongoing'.”

[51] It is important to mention that the grievants in that case did not pursue their unfair labour practice claim, but referred the unfair discrimination claim to the Labour Court. Accordingly, the LAC was only required to consider if the alleged unfair discrimination was ongoing. The LAC addressed the alleged ongoing nature of the dispute thus:

“(24) At the CCMA the appellant argued that the respondent's submission that the dispute is ongoing is without merit because the unfair labour practice/unfair discrimination complained of took place in 1998 with the promotion/upgrading of certain employees. What was ongoing (it argued) was the consequence of the promotion/upgrade: that is the continued differential in the salary which the promoted/upgraded employees received as opposed to the salary received by the grievants. The unfair labour practice/unfair discrimination act therefore occurred more than 90 days before the referral was made to the CCMA and, as such, the CCMA could not and should not have entertained the referral without the respondent having been granted condonation for doing so outside the prescribed time-limit.

(25) Section 191(1)(b)(ii) of the Act provides that a dispute about an unfair labour practice must be referred to a council having jurisdiction to resolve the dispute or to the CCMA within -

'90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.'

(26) … It is not the knowledge of the union that is relevant but that of the 'employee'. Section 191(1)(b)(ii) clearly provides that the referral must be made, if not within 90 days of the act or omission constituting the unfair labour practice, then 'within 90 days of the date on which the employee became aware of the act or occurrence'.

(27) The ruling of the commissioner would therefore be open to be reviewed and set aside if the dispute constituting the unfair labour practice was said to occur in 1998 as alleged by the appellant. The problem however is that the argument presented by the appellant is premised upon the belief that the unfair labour practice/unfair discrimination consisted of a single act. There is however no basis to justify such belief. 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 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.”

[52] In City of Johannesurg, the dispute concerned an unfair labour practice relating to demotion. The court reasoned:

“(11) It was submitted on behalf of the third respondent that the nature of the dispute was continuous, one akin to a discrimination dispute and that since it continued well into 2009 (and indeed to the date of referral), the referral was not late. I have difficulty appreciating the logic of this submission. I see no reason why a demotion does not fall into the same category as a dispute concerning a dismissal or any other disciplinary penalty, both of which are the subject of strict time limits which run from the date of the employer’s actions. Of course, an act of demotion has consequences in the form of a diminution of status perhaps, and those consequences may well be ongoing. But it is not so as it necessarily is in the case of an act of unfair discrimination, where the unfair act complained of is continuous,

uninterrupted or repeated. For example, in a claim for equal pay, the fact that the employer continues each month to pay a lower wage on one or more discriminatory grounds, has the result that the act of discrimination is continuous. But an act of demotion is not continuous in the same sense. This much is acknowledged by the wording of s 191 (1) (b) (ii) which requires a referral within 90 days ‘of the date of the act or omission which allegedly constitutes an unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence’. The case in which the third respondent relies in support of its submission, SABC Ltd v CCMA & others (2010) 3 BLLR 251 (LAC), supports this analysis. That was a case that concerned unfair discrimination in the form of continuous conduct rather than a single act. Not only is it distinguishable on that basis, but the court drew a clear distinction between ongoing unfair labour practices (unequal pay) and ‘one-off’ decisions or single acts that are not repetitive in nature. Were an act of demotion (or dismissal or the issuing of a final warning for a 12 month period) to be regarded as continuous for the purposes of s 191, that would make a mockery of the time limits imposed by the section. An employee need only allege that he or she continues to suffer the consequences of dismissal, some lesser disciplinary measure or demotion to avoid the prescribed time limits altogether.”

[53] The Labour Court in Eskom Holdings SOC Ltd v National Union of Mineworkers on behalf of Kyaya & others [2017] 8 BLLR 797 (LC) followed the reasoning in City of Johannesburg , viz:

“(59) I consider the above reasoning in City of Johannesburg v South African Local Government Bargaining Council and others to be sound, and equally applicable to an unfair labour practice based on promotion. The ratio in SABC is clearly distinguishable. The point can be illustrated by way of a simple example. Two employees apply for a promoted position and one employee is promoted whilst the other is not. Accepting that the decision not to promote the one employee is unfair, does this now mean that that every month after that decision was taken the employer commits a continuous unfair labour practice because the employee does not occupy the promoted position and is paid less? Surely not. This would render the 90-day time limit under section

191(1)(b)(ii) completely valueless. The employee can in effect do nothing about an employer’s decision not to promote for a year, and then decide to pursue it because it is purportedly “continuous”. This flies directly in the face of the primary consideration of the expeditious resolution of employment disputes. I accept that one must treat a failure to promote for example based on race differently, but that would be because the cause of action is founded on discrimination, and not an unfair

labour practice per se, with discrimination requiring a different level of continuous protection.”

[54] More recently, in Amalungelo Workers Union on behalf of Mayisela & others v Commission for Conciliation, Mediation & Arbitration & others (2022) 43 ILJ 600 (LAC), the LAC had to determine when the time period for referring a dispute under S 198D(3) of the LRA commenced. The LAC endorsed the approach in the Eskom and City of Johannesburg judgements, and held:

“(19) Section 198D(1) refers to ‘any dispute arising from the interpretation and application of sections 198A, 198B and 198C’ and provides that such ‘may be referred’ to the CCMA or council ‘with jurisdiction for conciliation and, if not resolved, to arbitration’. Subsection (3) of that section deals with the actual referral of the dispute referred to in s 198D(1). It provides: ‘a party to a dispute contemplated in subsection (1), other than a dispute about a dismissal in terms of section 198A(4), may refer the dispute, in writing, to the commission or to the bargaining council, within six months after the act or omission concerned’ (emphasis added).

(20) The ‘act or omission’ referred to in subsection (3) is clearly that which gave rise to the dispute. And the dispute, as long as it is the same one, only has one initial date on which it arose. The fact that the dispute is ongoing, in the sense that it recurs after it first arose, may be because it is either never resolved, or satisfactorily resolved. But that does not imply that the parties, as it were, necessarily have a new ‘act or omission’ or ‘wrong’ every time the same dispute erupts again.

(21) The appellant employees’ reliance on what this court held in SABC and what the Supreme Court of Appeal held in Lombo, or any of the decisions allegedly based on them, is misplaced. The facts of those cases are distinguishable on their facts. There the courts were not dealing with the interpretation of s 198D of the LRA, or anything approximating the wording of that section, or s 198A, 198B or 198C, to which s 198D applies.

(22) In any event, as explained in Eskom, not even all unfair labour practices which occur on a monthly basis constitute ‘a continuing wrong’ as envisaged in SABC. To use the language of s 198D, what would occur in certain instances is not the act or omission, for example, to promote (as in Eskom) or not to employ persons on a permanent basis (as alleged in this instance), but the consequences of the failure to promote or the failure to appoint on a permanent basis, which would constitute the concerned act or omission. However, in the light of the outcome of the analysis in this matter, it is not necessary to elaborate on that aspect.”

(emphasis added-footnote omitted)

[55] In light of the above, the critical question to determine in this matter is whether or not the act or omission constituting the alleged unfair labour practice was repeated each passing month that the City did not give effect to clause 8 of its Remuneration policy. In the SABC matter the LAC effectively found that the act of discrimination did not concern a repetition of the failure to promote or upgrade the grievants but that the very act of paying them less than the comparator each month was a repetition of the unfair discriminatory act itself. In other words, the very act of paying the grievants less each month embodied the unfair labour practice. In this case the unfair labour practice is an omission to evaluate Nevin’s starting salary under Clause 8 of the Remuneration. The remunerative consequences of that failure are not yet known. Even after the arbitrator granted relief in his award, it is a matter of speculation what the outcome might be for Nevin’s remuneration.

[56] It cannot be said that the remuneration Nevin received every month since January 2016 was a fresh iteration of the same alleged omission to comply with clause 8 of the Remuneration policy. Where a single, discrete omission or act by an employer is the foundation of an unfair labour practice claim it cannot be said to be continuous until that act or omission is reversed, merely because it has ongoing consequences.

[57] Consequently, at the latest, Nevin ought to have referred his unfair labour practice dispute within 90 days of becoming aware of it in May 2016. It follows that the condonation ruling must be set aside and the merits of the condonation application considered.

Should the late referral of Nevin’s unfair labour practice claim be condoned?

[58] In considering whether Nevin’s late referral of his dispute to the bargaining Council should have been condoned, the court must consider what was placed before the first arbitrator who made the condonation ruling.

[59] Section 191(1)(b)(ii) of the LRA stipulates that a dispute about an unfair labour practice must be referred to the CCMA or a bargaining Council within “…90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence” (emphasis added).

[60] In his affidavit in support of his condonation application, he states that the dispute only arose on 28 September 2018 after all attempts to negotiate and follow other internal procedure failed. He further stated that the “initial act of omission” occurred at the time of his employment on a salary that was not consistent with the principles of fairness in the Remuneration Policy. He claims he raised it with his department line manager as soon as he became aware of the noncompliance and the matter was referred to the HR department in July 2016. At best for Nevin, this could not have been later than

28 July 2016 when he sent his request to the HR manager for the Remuneration Policy to be applied to him.

[61] Consequently, his referral should have been made within 90 days of that date, namely by 26 October 2016. His referral on 28 September 2018 was therefore 23 months late, which is an extremely excessive delay. It took him nearly eight times longer than it should have to refer the dispute.

[62] Nevin’s explanation for such a lengthy delay:

“The delay in referring the dispute is due to the ongoing attempts by the applicant to engage the employer about the unfair remuneration practice that exists. The employer has steadfastly avoided all attempts to enter any dialogue about the noncompliance with their own remuneration principles as stated in their Remuneration Policy.

Furthermore the applicant had no assistance with the matter, including IMATU who declined to assist, and had to conduct his own research with regard to case histories of similar disputes.

In January 2018 the applicant was diagnosed with a serious illness and underwent extensive diagnostic tests, surgery and recovery (twice), and post-op adjuvant treatment which required daily hospital visits for the seven-week period ending one October 2018.”

[63] After the HR department’s response to the effect that he had agreed in his contract of employment to accept the starting salary which could not be altered, his department set in train a process to obtain his advancement which was a procedure quite independent from the application of clause 8 of the Remuneration Policy. That culminated in him being advanced to job grade T15 in October 2017. The next process which was also initiated by the department was the compilation of a report by the director of the department for a salary adjustment on the basis of the scarce skills provisions of the Remuneration Policy. The recommendation was made towards the end of June 2018, but was not implemented. Neither of these processes represented an attempt to pursue the original dispute relating to the application of clause 8 of the Remuneration Policy in the determination of Nevin’s starting salary. Moreover, these processes were driven by the department rather than by Nevin himself, even though they might have been intended for his benefit. Nevin knew also that he could not file a grievance about his salary. There is no

evidence that independently of these other separate departmental and management initiatives that Nevin was actively engaged in a constant effort to advance the resolution of his original unfair labour practice claim internally. Even if Nevin had done so more than once, without any success, that did not create leeway to delay his referral of a complaint until he felt it appropriate to do so.

[64] In relation to the period of illness Nevin referred to, the City points out that for the vast majority of working days from January to May 2018 Nevin was at work. Further, after he returned to work on 22 June 2018 the occasions he was booked off work were mostly for an hour at a time. Accordingly, it argues that if Nevin was able to be at work as much as he was he would have been able to refer his dispute.

[65] The inescapable impression one gains is that Nevin decided not to pursue his unfair labour practice claim in the hope that the other initiatives of advancement or a scarce skills based salary adjustment might result in the ultimate salary rectification he was seeking, even if those processes would not have resulted in any back pay. When those processes did not yield as much as he had perhaps hoped it was then that he decided to revive his original unfair labour practice claim and pursue it. It is telling that he only launched his claim when it must have become clear that the recommendation for a salary adjustment based on scarce skills was not going to be implemented.

[66] However, the time limits for making referrals of unfair labour practice disputes are intended at least in part to ensure that disputes do not fester indefinitely but are dealt with expeditiously. Expeditious dispute resolution is an important objective of the LRA[3]. An employee having an unfair labour practice claim cannot, so to speak, put it in the freezer to be defrosted and used as and when the need arises on a future date.

[67] Nevin was not hampered by impediments beyond his control in pursuing his claim. The real impediment to the timeous pursuit of his unfair labour practice claim was his own decision not to pursue it until a later stage. In so far as he claims to have been ignorant of the legal processes, his own conduct of his case is ample testimony to his considerable legal capabilities, notwithstanding being a layperson. In any event, there is no explanation as to why he only realised what he needed to do, nearly two years after he was able to articulate very precisely the nature of his complaint in relation to clause 8 of the Remuneration policy. On the evidence available, the explanation for his egregious delay is not acceptable.

[68] In respect of the substantive merits of his claim, on Nevin’s undisputed formulation of the unfair labour practice claim, there is a reasonable prospect he might have obtained the procedural relief which the second arbitrator awarded. If he succeeds he might obtain some remunerative benefit over and above what he obtained later through the advancement process, even though the retrospective effect of any revision of his starting salary could be curtailed given his delay in launching his claim.

[69] In deciding whether it would be in the interests of justice to condone the delay, the possible impact on the employer of allowing this extremely belated pursuit of an unfair labour practice claim to proceed must also be considered. The City had no reason to believe that Nevin was nurturing an unfair labour practice claim relating to his original assessment of remuneration more than two years after his employment, and after other independent internal processes had been initiated pertaining to his appropriate salary grade, without that issue being raised and flagged as an unresolved prior query about his appropriate salary grade. Logically, that dispute should have been resolved before subsequent salary adjustment processes were embarked on, and it was only fair that the City should at least have been made aware of this outstanding issue by the time those other initiatives

were undertaken. His dispute also had potential ramifications for the terms on which other staff were employed in the income generation

project, which should have been brought to light early.

[70] On a conspectus of all the issues above I am not persuaded that the late referral of Nevin’s unfair labour practice claim should be condoned. Consequently, the arbitration award also must fall away.

Order

[1] The condonation ruling of the Third Respondent in case number WCM 101803 dated 5 November 2018 is reviewed and set aside.

[2] The aforesaid condonation ruling is substituted with a ruling that condonation for the late referral of the unfair labour practice claim is refused.

[3] Consequently, the arbitration award of the Fourth Respondent in case number WCM0101803 dated 21 May 2019 is reviewed and set aside for lack of jurisdiction.

[4] No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

[1] Total Cost of Employment

[2] At para [47].

[3] See e.g Khumalo and Another v MEC for Education: KwaZulu-Natal (2014) 35 ILJ 613 (CC) at para 42