NEHAWU obo Mdliva v National Zoological Gardens of SA and Others (JS274/21) [2024] ZALCJHB 469 (26 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case No: JS 274/21

In the matter between:

NEHAWU obo ZANELE MDLIVA Applicant and NATIONAL ZOOLOGICAL GARDENS OF SA First Respondent MAANO NETSHIOMBO N.O. Second Respondent SUMIYA MOHAMED N.O. Third Respondent UTHESHA MOODLEY Fourth Respondent

Heard: 21 November 2024

Delivered: 26 November 2024

JUDGMENT

NAIDOO, AJ

Introduction

[1] The applicant NEHAWU, acting on behalf of its members, Ms Z Mdliva (Mdliva) has referred an unfair discrimination claim in terms of s 6(4) read with s 6(1) of the Employment Equity Act[1] (EEA).

[2] In brief, Mdliva alleges that the fourth respondent, Ms U Moodley (Moodley), occupies the same position and performs the same tasks as compared to herself, yet receives a higher salary. Mdliva attributes the salary disparity to race; she being a Black female, whereas Moodley is an Indian female.

Common cause facts

[3] Mdliva and Moodley are both employed by the first respondent, the National Zoological Gardens of South Africa (the employer) and occupy the same position of Payroll and Benefits Officer.

[4] Mdliva and Moodley perform the same work, and responsibilities and are both at the same level within the employer’s organizational structure.

[5] Mdliva occupied the aforementioned post from 2013 whereas Moodley took up her position, in October 2018.

[6] At the time Mdliva referred her dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), she was earning R409k per annum whereas Moodley was earning R432k per annum from the inception of her employment. Despite this difference, both employees’ salaries, were pegged at notch 9.

The employer’s case

[7] Ms S Nku (Nku) testified on behalf of the employer. At the time of Moodley’s appointment, Nku was the Acting Human Resource Manager responsible for all HR functions, including new appointments.

[8] Nku testified that in 2018, the employer entity was transferred, in terms of s 197 of the Labour Relations Act,[2] from the National Research Foundation of South Africa (NRFSA) to the South African National Biodiversity Institute (SANBI).

[9] Consequentially, the employer ceased to receive external HR and payroll support from NRFSA whereafter, the employer had to become self-supportive when fulfilling its HR function. Post transfer, the HR function increased and included a legal function concomitant to the payroll function.

[10] Pursuant to this, the employer sought to employ HR personnel, who had the experience and qualifications to ensure they could perform and meet the new proficiencies within payroll and benefits, as compared to the past.

[11] Moodley applied for and was appointed to the vacant post she currently occupies. Prior to being appointed, Moodley was offered an annual remuneration package of R420k, however, she successfully negotiated a higher annual remuneration of R432k. Nku testified that Moodley successfully negotiated that she received the same or similar net pay, as compared to what she received at her erstwhile employer.

[12] Nku, testified that the initial offer of R420k per annum was market related and in line with the employer’s remuneration policy at the time. However, due to the fact that the employer sought to attract HR personnel with the skills needed to manage the payroll and benefits function without the need for external support, the employer was prepared to settle for the remuneration Moodley requested. Its decision to do so, was not motivated by Moodley’s race, but rather she had the skills required to perform in a new and more demanding environment.

[13] Nku was of the view that the salary disparity between Moodley and Mdliva was justified in terms of Regulation 7 of the Code of Good Practice for Equal Pay / Remuneration of Work for Equal Value[3].

[14] When comparing Moodley’s gross monthly salary of R30 350.00 as of August 2018, which she received from her previous employer to her gross monthly salary of R36 000.00 which Moodley received from the employer in November 2018; Nku conceded that Moodley’s gross monthly income increased when she joined the employer. While the argument put to Nku was that a comparison of these figures, displaced the argument that the employer had to match Moodley’s previous salary, Nku highlighted the fact that the net salary, as well as total earnings, as recorded in the two salary advice slips, were similar. This according to Nku, supported the version that the employer attempted to match Moodley’s previous remuneration.

[15] In responding to the argument that when Moodley commenced her employment, it was Mdliva who had to train her on the payroll system, which in turn challenged the notion that Moodley had a wider skills set as compared to Mdliva; Nku stated that training a new payroll officer on the current payroll system was not a new phenomenon. Mdliva has likewise received training on the same system when she was employed.

[16] Nku disagreed with the proposition that when an employer wishes to match the salary of a potential candidate, it is the total cost to the company which serves as a benchmark and not the net salary.

Mdliva’s case

[17] Mdliva disputed the version that the employer increased Moodley’s remuneration in an attempt to match her previous salary. On the salary advice slips, it was clear that Moodley received a lower gross salary as compared to the salary she received from the employer.

[18] Mdliva stated that it was the total cost to the employer which ought to have been the benchmark for salary negotiations and not the net salary. If one uses the total costs to the company when negotiating remuneration, then an employee is allowed to structure their salary according to their needs and in turn, will determine their net pay. This, according to Mdliva was in keeping with the employer’s own remuneration policy. Thus, Mdliva submitted that it was wrong for the employer not to use the total cost to the company as a benchmark for salary negotiations.

[19] Mdliva further submitted that Moodley was hired pursuant to the employer’s need to replace the previous payroll officer who had resigned. Therefore, according to Mdliva, Moodley was not hired due to any new demands in respect of the position, as testified by Nku. The advert Moodley responded to, was silent on the need for special skills.

[20] In disputing the notion that Moodley came with special skills, Mdliva stated she trained Moodley on the payroll system, how to use the spreadsheets and on the employer’s policies. Mdliva did however concede that such training is expected when any new person is employed in HR, as systems and policies differ from employer to employer.

[21] In respect of qualifications, Mdliva could not comment on the assertion that Moodley had an NQF level 6 qualification in Human Resources, whereas she had an NQF level 5 qualification.

[22] Mdliva confirmed there was nothing untoward with Moodley negotiating a higher salary, but she nevertheless left it as unfair that Moodley received more income for performing the same tasks, as compared to herself. To this end, Mdliva testified that she experienced emotional and mental anguish, following what she perceived to be unfair discrimination.

Evaluation

[23] Although Mdliva disputed the rationale that the employer appointed Moodley due to her having special skills and rather she was employed to replace the previous payroll and benefits officer who had resigned; there was no dispute that post the s 197 transfer, the employer ceased receiving external support in respect of HR functions, which in turn resulted in it having to be self-supportive in this function.

[24] It therefore is accepted that at the time the employer interviewed Moodley, it was looking for an employee with the skills and experience conducive to the environment after the s 197 transfer. The fact that Moodley and Mdliva performed the same duties, does not materially alter this fact. Moreover, on her own version, Mdliva conceded that the assistance she offered Moodley in respect of the payroll system and policies, was in keeping with the assistance any new HR personal would receive. Thus, the fact that Mdliva

assisted/trained Moodley in these aspects, does not speak to Moodley’s lack of skill set as suggested by Mdliva.

[25] Mdliva correctly submitted that there was nothing untoward for Moodley negotiating a higher annual remuneration. There was no dispute that Moodley’s initial offer of R420k per annum was market related in 2018, five years after Mdliva was employed in the same post.

[26] There are no rules of engagement when parties embark on salary negotiations. Therefore, when Moodley opted to use her net pay, which she received at her previous employment, as a benchmark when negotiating her remuneration with the employer and the employer accepted this benchmark; no unfairness arose. Put differently, the employer and Moodley were not limited to negotiating remuneration using cost to the company as a benchmark, as suggested by Mdliva. Having had sight of Moodley’s salary advice she received from her previous employer and comparing it to her salary advice she received from the employer; it is accepted that the net pay she received when joining the employer, was the same or very similar to the net pay she received prior.

[27] As recorded, the employer’s appetite to negotiate with Moodley, was underpinned by it wanting to attract the right calibre of employees to work in what it perceived to be a more demanding environment which was brought about subsequent to it being

transferred to the SANBI.

[28] Having assessed both parties’ submissions, other than alleging unfair discrimination on the grounds of race, Mdliva was unable to offer any evidence, which the court could accept in support of this proposition. The mere fact that two employees from different ethnic backgrounds, perform the same work, yet receive different salaries; does not in itself lend to the conclusion that the lower paid employee is being unfairly discriminated against on grounds of their race. In casu, there is no link between the pay disparity and the different race groups Moodley and Mdliva respectively belong to.

[29] In any event, and for reasons advanced above, the employer has justified the salary disparity between the two employees, and I find its explanation falls within the ambit of clause 7.3.7 of Regulation 7.[4]

[30] In so doing, the employer has discharged its burden by tendering an explanation which is “rational and not unfair, or is otherwise justifiable”, as required in s 11(1)(b) of the EEA.

[31] In the premise I make the following order.

Order

1. The applicant’s claim is dismissed with no order as to costs.

M. Naidoo

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Ms S. Mavuso from Majang Attorney

For the First Respondent: Mr S. Khanya from Ismail & Dahya Attorneys

[1] Act 55 of 1998.

[2] Act 66 of 1995.

[3] GN 448 of 1 June 2015.

[4] “Subject to what is stated below, it is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following factors-any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the Act.”