Tuswa v State Information Technology Agency (Soc) Ltd and Another (J4394/18) [2024] ZALCJHB 395 (27 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J4394/18

In the matter between:

PUMZA TUSWA Plaintiff and STATE INFORMATION TECHNOLOGY AGENCY (SOC) LTD First Defendant CHIEF EXECUTIVE OFFICER Second Defendant

Heard: 16 – 19 September 2024

Delivered: 27 September 2024

This judgment was handed down electronically by circulation to the parties and/or their legal representatives by email. The date for hand-down is deemed to be 27 September 2024.

JUDGMENT

MAKHURA, J

Introduction

[1] The plaintiff lodged a claim in terms of section 6(1) of the Employment Equity Act[1] (EEA). The EEA prohibits unfair discrimination, whether directly or indirectly, on any listed grounds or any other arbitrary grounds.[2] The plaintiff claimed that she was unfairly discriminated against by the defendants based on the listed grounds of age and disability.

The referral

[2] The plaintiff referred an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 3 July 2018. The certificate of outcome records that the dispute was referred on 9 July 2018. The matter was referred to this Court by way of application proceedings in December 2018.

[3] The delay, calculated from the expiry of the 30-day period, was less than a month. In the interest of justice and promotion of speedy resolution of labour disputes, and having raised the issue with the parties and considering that the plaintiff was an unrepresented litigant, I decided to call the plaintiff into the witness stand to establish the reason for the delay.

[4] The plaintiff testified that she was not aware of this fact and that she trusted her then legal representative. She testified further that had she known of the delay, she would have applied for indulgence. She, therefore, requested the Court’s indulgence to grant condonation. The defendants did not oppose the application. Having considered the application, I therefore granted condonation.

[5] The plaintiff was employed as Head of Department: Office of the Chief Executive Officer (CEO). She claimed that she was unfairly discriminated against by the defendants because of her age and disability. She listed various acts or omissions on the part of the defendants which allegedly constituted the unfair discrimination.

[6] First, she alleged that the defendants failed to attempt to resolve her grievances. Second, she was removed and/or transferred from the office of the CEO and her reporting lines changed without proper and necessary consultation. Linked to this, she complained further that her subordinates were removed from her supervision without due process being followed. Third, she contended that she was denied opportunities to be promoted to the advertised posts and to be appointed in acting capacity to at least two positions. This included a refusal by the defendants to allow her to submit business cases to motivate for her appointment. Fourth, she was excluded from Management Committee (MANCO) and Executive Committee (EXCO) meetings. Fifth, the plaintiff contended that she was not given duties and was frustrated and rendered redundant. She also complained that she was not remunerated in terms of her skills

and expertise.

[7] The trial was set down from 16 September 2024. The plaintiff testified on 17 and 18 September 2024. At the end of her testimony, the defendants applied for absolution from the instance. This application was argued on 19 September 2024. This is a judgment in the application for absolution from the instance. Having heard the evidence of the plaintiff, it became apparent that there were jurisdictional issues in respect of some of her claims.

Legal principles

Jurisdiction

[8] It is trite that where the Court has no jurisdiction, it cannot make any order, including on application for absolution which has the consequence of dismissing the claim on its merits, other than to dismiss the matter for lack of jurisdiction.[3]

[9] Section 10(2) of the EEA deals with the time period within which an unfair discrimination dispute in terms of the EEA may be referred to the CCMA. It provides that:

‘Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination.’ [Emphasis added]

[10] In Amalungelo Workers’ Union on behalf of Mayisela and others v Commission for Conciliation, Mediation and Arbitration and others[4] (Amalungelo), the Labour Appeal Court (LAC) held that:

‘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 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.’[5]

[11] The above judgment was decided in the context of section 198D(3) of the Labour Relations Act[6] (LRA), which provides that:

‘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]

[12] The text of these two provisions (section 10(2) of the EEA and section 198D(3) of the LRA) is materially the same. They both provide that a dispute may be referred to the CCMA “within six months after the act or omission” complained of. This Court has found, in line with the LAC approach in Amalungelo, that there can only be one act or omission that gives rise to a dispute.[7] Accordingly, where the dispute was referred outside the six months period without a successful condonation application, the CCMA has no jurisdiction to conciliate such dispute. The approach followed by the LAC in Amalungelo is in my view to be preferred. Therefore, in the absence of a successful condonation application, the CCMA would have no jurisdiction to conciliate and the Court would have no jurisdiction to adjudicate any unfair discrimination dispute arising from any act or omission which was referred outside the six months period. If the act or omission is alleged to be continuous, the applicant or

plaintiff must show how it is continuous, which will necessarily address the date when the applicant or plaintiff became aware of the alleged discriminatory act or omission. That in my view must be done by way of an application for condonation.

[13] The Court’s jurisdiction will also not be engaged where the issue in dispute arose after the referral of the dispute to the CCMA, that is, after 3 July 2018. Therefore any unconciliated issue or issue in dispute referred to this Court as part of this referral falls to be dismissed for lack of jurisdiction.[8]

Burden of proof

[14] Section 11 of the EEA deals with the burden of proof. It provides that:

‘(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination –

(a) did not take place as alleged; or

(b) is rational and not unfair, or is otherwise justifiable.’

[15] The plaintiff alleged unfair discrimination on the listed grounds of age and disability. The question is whether the plaintiff’s mere allegation of unfair discrimination on age and disability is sufficient to shift the onus to the defendants to prove that the alleged act of unfair discrimination did not take place or that the act is rational and not unfair or justifiable.

[16] The above issue was addressed by this Court in Sasol Chemical Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[9] (Sasol Chemical Operations). This matter came before this Court on appeal in terms of section 10(8) of the EEA. The matter related to pay differentiation on a listed ground of race. The Court endorsed the views expressed by Du Toit et al in Labour Relations Law: A Comprehensive Guide[10] that an employee must produce sufficient evidence to show prima facie that he or she was discriminated against. This view finds support in Kroukam v SA Airlink (Pty) Ltd[11] which was referred to by this Court in Sasol Chemical Operations, where, in the context of automatically unfair dismissal, the LAC held that:

‘In my view, s 187 imposes an evidential burden upon an employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in s 187 for constituting an automatically unfair dismissal.’

[17] Based on the above, a mere allegation of unfair discrimination on a listed ground is not sufficient to trigger the employer’s onus to establish the defence in terms of subsection 1(a) or (b). For the onus to shift to the employer, the employee must first provide sufficient evidence to establish a prima facie case of discrimination. Where no such case has been put forward, it would be unfair to expect the employer to take a witness stand to “refute” wild, unsubstantiated and unfounded statements. This would not be in keeping with the law of evidence and section 11(1) of the EEA, which in my view requires an employee to prove discrimination first before the onus shifts to the employer in terms of (a) or (b).

[18] The employer cannot be expected to prove that no discrimination took place if no prima facie case was made out. Equally, the employer cannot be expected to show that the discrimination is rational or fair or otherwise justified if there is no prima facie case of discrimination. When the employee’s claim and evidence fall short of establishing a prima facie case of discrimination, there is no reason in law to deprive the employer of its right to have the matter discharged – by

granting an application for absolution from the instance.

Absolution

[19] The test for absolution is trite – whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff”[12]. Although absolution is to be granted sparingly, when the occasion arises and the interest of justice dictates, a Court should grant it.[13]

Evaluation

Claim 1: The grievances

321

[20] The plaintiff lodged her first grievance on 2 March 2017. The grievance related to a decision by the defendants to transfer her or change her reporting lines without consultation. The plaintiff was issued with a letter of transfer on 1 March 2017. In her email to the CEO dated 2 March 2017, the plaintiff recorded that there was an agreement to consult on the issue. In response, the

CEO withdrew the letter of transfer. The grievance was therefore resolved when the CEO withdrew the letter of transfer.

[21] The second grievance was lodged on 16 March 2017. The nature of the grievance was alleged to be “continuous unfair treatment and discrimination”. The plaintiff subsequently wrote “ignore” on the grievance form. She testified that the second grievance related to

the first grievance and that when the CEO retracted the letter of transfer, that settled the issue, hence “ignore”.

[22] The act or omission leading to the first and second grievances occurred in March 2017. This was a discrete act or omission. The plaintiff should have referred the dispute within 6 months. The 6-month period expired in September 2017. The plaintiff referred the dispute to the CCMA on 3 July 2018, some 10 months outside the 6-month period. There was no condonation application before the CCMA and the CCMA had no jurisdiction to conciliate this dispute.

[23] The third, fourth and fifth grievances were lodged on 31 August, 12 September and 15 October 2018 respectively. The plaintiff complained about continued discrimination, unfair labour practice, and harassment and victimisation. These grievances were referred after the referral of the dispute to the CCMA. Therefore, the issues were not conciliated and this Court has no jurisdiction to adjudicate unconciliated unfair discrimination disputes.

Claim 2: Transfer from the office of the CEO and/or change of reporting lines

[24] After the plaintiff lodged her first grievance which resulted in the CEO withdrawing the decision to transfer her, she was later issued with a letter titled “changes in reporting lines”. The letter is dated 1 June 2017. It advised the plaintiff that her role would cease reporting to the CEO and that she would report to the Executive: National Consulting. It is not in dispute that the plaintiff signed an acknowledgement of receipt of the letter and acceptance of the terms thereof.

[25] The plaintiff accepted the terms of the change in reporting lines. She now wants to suggest that despite her agreement, she was unfairly discriminated against based on age and disability. She however conceded that her disability did not affect or hinder her performance. She did not state how age and/or disability had anything to do with her change in reporting lines, which she agreed to.

[26] The plaintiff also complained that her subordinates were no longer reporting to her and that this constituted unfair discrimination. No evidence was adduced to show how changing her reporting lines which also necessitated a change in reporting lines by her subordinates led to any differentiation and how this constitutes discrimination based on age and/or disability.

[27] In any event, this act or omission occurred in June 2017. The 6-month period to refer a dispute to the CCMA expired in December 2017. The referral was made on 3 July 2018, over 6 months outside the prescribed period. The CCMA had no jurisdiction to conciliate the dispute in the absence of a successful condonation application and this Court’s jurisdiction is equally not engaged.

Claim 3: Promotion and acting positions

[28] Although the plaintiff pleaded in her papers that she was denied an opportunity for an interview, no evidence was adduced in this regard. Further, she did not testify about the alleged refusal to afford her an opportunity to write a business case to motivate for an appointment to any position. The plaintiff focused on two positions where she testified that she was denied an opportunity to be appointed in an acting capacity.

[29] The first opportunity was in February 2016, after Charmaine Houvet (Houvet) left the position of Executive in the office of the CEO. The plaintiff complained that after Houvet left the position, she thought that she would be considered to act based on her experience and a practice that the next in line position should act in the vacant position. However, the plaintiff pleaded that the first defendant did not fill this position. During evidence, she testified that the position was essentially frozen. This was a discrete act or omission which occurred in February 2016 and should have been referred to the CCMA within 6 months. The 6-month period expired in August 2016. The plaintiff referred the dispute to the CCMA on 3 July 2018, some 23 months outside the prescribed period. There was no condonation application before the CCMA and the CCMA had no jurisdiction to conciliate this dispute.

[30] The second is the position of HOD: Strategy, Policy and Planning. This position was on the same level as the plaintiff’s. On 9 February 2017, the plaintiff addressed an email to the CEO requesting to act in this position, which was at the time occupied by “Stokie” in an acting capacity. The CEO, in his response, informed the plaintiff that for operational requirements, he was not able to transfer the work that Stokie was doing in that capacity to anyone else. He informed the plaintiff that he would consult human resources on how to deal with her request and related matters. The plaintiff did not take issue with the CEO’s

response. She noted the response and thanked the CEO. She also did not lodge a grievance nor did she declare a dispute, whether unfair labour practice or unfair discrimination dispute, at the time or within 6 months.

[31] This was a discrete act or omission which occurred on 9 February 2017 and should have been referred within 6 months. That 6-month period expired on 9 August 2017. The dispute was referred 11 months outside the prescribed period and in the absence of a successful condonation application, the CCMA had no jurisdiction to conciliate the dispute. The Court has no jurisdiction over these claims.

Claim 4: Exclusion from MANCO and EXCO meetings

[32] The plaintiff pleaded that she was part of the HOD committee and that she would attend extended MANCO and EXCO meetings on invitation. She testified that she was head of projects and was required to travel throughout the country. She referred the Court to one meeting of Extended EXCO for Corporate Performance Review, which was scheduled for 12 January 2017 and testified that this was one example of her exclusion from the meetings.

[33] She was not a member of MANCO or EXCO. She attended these committees’ extended meetings only on invitation. There is no shred of evidence establishing prima facie that she was excluded from these meetings because of her age and/or disability. She was never part of these committees and therefore had no right to attend the meetings.

[34] In any event, the only reliance for her alleged exclusion is based on a meeting that took place 18 months prior to the referral of her dispute to the CCMA. The CCMA had no jurisdiction, in the absence of a successful condonation application, to conciliate the dispute insofar as it related to this claim and this Court’s jurisdiction has not been engaged.

Claim 5: Redundancy and remuneration

[35] The claim for remuneration was not pleaded. That should be the end of the enquiry. However, the plaintiff’s evidence was that she was promised a salary increase by the CEO. The promise was, accordingly to the plaintiff, made verbally. She however could not recall whether this promise was before 3 July 2018 or after she had already referred her unfair discrimination dispute to the

CCMA. This again should mark the end of the claim. The plaintiff did not provide any sufficient particularity to this claim.

[36] The plaintiff’s claim that she was not allocated work which left her frustrated and was rendered redundant was contradicted by her oral evidence. She testified that she expected a salary increase because of her increased workload, which required her to work long hours.

[37] The plaintiff failed to establish a prima facie claim that she was rendered redundant and that she was entitled to or even expected a salary increase. It is not even necessary to consider whether the alleged refusal to give her a salary increment was unfair because of her age or disability because she simply could not even show that she was due an increase prior to 3 July 2018. Her redundancy claim was collapsed by her own oral evidence.

[38] Accordingly, the burden of proof has therefore not shifted to the defendants. It would be a waste of time and resources to expect the defendants to take the witness to respond to these wild, baseless and unsubstantiated allegations. Accordingly, the plaintiff failed to lead evidence which this Court could or might find for her. The defendants’ application for absolution from the instance on this issue must succeed.

Conclusion

[39] During evidence, I asked the plaintiff why she did not refer the dispute earlier. She was not able to provide any sound and convincing answer other than that she continued to lodge the grievances about the defendants’ failure to resolve her grievances. However, I have already dealt with the nature of the grievances, which were resolved and some were declared after the referral of the dispute to the CCMA. I have found that the CCMA had no jurisdiction to conciliate claims 1 to 4.

[40] Claims 1 to 4 fail on the basis that this Court has no jurisdiction. The application for absolution succeeds in respect of claim 5. The remedy (compensation or damages) is dependent on the merits.[14] The collapse of the plaintiff’s claim on the merits therefore makes any consideration of compensation or damages moot.

[41] In her CCMA referral, the plaintiff recorded the summary of the dispute as unfair discrimination based on age and disability. This type of summary of facts is not helpful. The plaintiff recorded that the dispute arose on 2 March 2017 and it was continuous until 7 March 2018. This in my view should have triggered the CCMA conciliating commissioner to request the plaintiff to provide more facts of the dispute in order to establish the CCMA jurisdiction. A directive to file a detailed statement of facts in unfair discrimination disputes which are alleged to be continuous would go a long way in ensuring that the CCMA properly execute its mandate and conciliate disputes that are referred within the prescribed period. A claim in the referral that the dispute (based on an act or omission that occurred outside the prescribed six months) is continuous is not sufficient to clothe the CCMA with the requisite jurisdiction.

[42] In the premises, the following order is made:

Order

1. The plaintiff’s claims 1 to 4 are dismissed for lack of jurisdiction.

2. The application for absolution from the instance is granted in respect of claim 5 and the plaintiff’s claim is dismissed.

3. There is no order as to costs.

M. Makhura

Judge of the Labour Court of South Africa

Appearances

For the Plaintiff: Ms P. Tuswa (In person)

For the Defendants: Mr H. Salani

Instructed by:

Ramatshila – Mugeri Attorneys

[1] Act 55 of 1998.

[2] Section 6(1) of the EEA provides that “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground”.

[3] Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA); [2009] 8 BLLR 721 (SCA) at paras 23 and 52 - 54.

[4] [2021] ZALAC 55; (2022) 43 ILJ 600 (LAC).

[5] Ibid at para 20.

[6] Act 66 of 1995, as amended.

[7] Department of Military Veterans v Moche and others [2022] ZALCJHB 44; For detailed discussion of the dispute referral provisions in the LRA and EEA, see M Makhura, J Phillips and A Gwebityala “Recurring Problem of Interpretation: Determining the Date of an ‘Ongoing’ Act or Omission” (2023) 44 ILJ 1416, where various judgments of the LAC and Labour Court are discussed. At p 1431, the authors advocate for the approach adopted in Amalungelo.

[8] See: National Union of Metalworkers of SA v Intervalve (Pty) Ltd and others (2015) 36 ILJ 363 (CC); [2015] 3 BLLR 205 (CC) at paras 31 – 32;

[9] (2019) 40 ILJ 436 (LC); [2019] 1 BLLR 91 (LC).

[10] Du Toit et al Labour Relations Law: A Comprehensive Guide (6 ed, 2015) at 696.

[11] (2005) 26 ILJ 2153 (LAC); [2005] 12 BLLR 1172 (LAC) at para 28.

[12] Gordon Lloyd Page & Associates v Rivera and another 2001 (1) SA 88 (SCA) at para 2, quoting the test as formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G – H.

[13] Gordon Lloyd Page & Associates (supra).

[14] Section 50(2) of the EEA.