- The Labour Court set aside a CCMA award which found a care facility unfairly discriminated against employees based on salary differences.
- The court found that employees did not seek condonation for a four-year delay after evidence showed they became aware of the salary disparity in 2017.
- Acting Judge V Barthus replaced the CCMA condonation ruling with an order refusing condonation and set aside the award.
A group of care workers who successfully challenged salary differences at the CCMA have lost their victory after the Labour Court found that their unfair discrimination dispute was referred too late.
Huis Witte Kruin approached the Labour Court to review and set aside a CCMA arbitration award that had found in favour of 27 employees who alleged that they had been unfairly discriminated against because a white colleague, Surina Rust, earned more than other carers.
The employer argued that the CCMA did not have jurisdiction to hear the matter because the employees did not ask for condonation for the entire period of delay before referring the dispute. Acting Judge V Barthus agreed and set aside both the arbitration award and the condonation ruling.
Dispute centred on salary differences
The employees claimed that Rust received a higher salary than other carers because she was white. The CCMA partly accepted this argument and found that the employer unfairly discriminated against employees through the salary disparity.
The employer challenged that outcome, arguing that the employees only sought condonation based on learning of the alleged discrimination on 22 September 2021 and that their referral was 64 days late.
However, evidence presented during arbitration revealed that employees had become aware of salary differences as early as 2017. According to evidence recorded by the arbitrator, workers became aware of colleagues’ wages after salary information appeared on scrap paper used for workplace printing.
The employer argued that when it became clear the dispute arose in 2017, the employees needed to ask for condonation for the period between 2017 and 2021. They did not do so.
Court finds delay was fatal
Judge Barthus found that the jurisdictional issue was key. The judgment noted that the law allows six months to refer an unfair discrimination dispute.
Judge Barthus said the law allows six months to refer an unfair discrimination dispute, so the referral was extremely late. The court said the lack of any explanation for the period between 2017 and 2021 was fatal to condonation.
Judge Barthus said, 'The absence of any explanation for the period between 2017 and 2021 is fatal to condonation.'
The judge also found that the arbitrator’s acknowledgement of when the dispute arose, along with not addressing the long delay, made the award reviewable and likely to be set aside.
Concerns raised about a discrimination claim
Although the jurisdictional finding disposed of the matter, the court also noted concerns about the evidence supporting the discrimination claim.
The employer said salary differences were linked to qualifications, experience and length of service, not race. Rust had advanced home care nursing qualifications and significant experience when she was appointed. The employer also pointed out that some coloured employees earned more than certain complainants.
Judge Barthus did not make a final decision on the merits because the matter was decided on the condonation issue. However, the judge noted that the record seemed to show salary differences were linked to qualifications, experience and length of service, not race.
The judge said, 'I note, however, that the record appears to show that the salary differences were linked to qualifications, experience and length of service, not race.'
The judge added that the employees failed to present credible evidence to support an unfair discrimination claim.
Final order
The Labour Court reviewed and set aside the arbitration award issued under case number WECT7005 22. The court also set aside the condonation ruling and replaced it with an order refusing condonation for the late referral of the unfair discrimination dispute. There was no order as to costs.
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