Labour Appeal Court: Unions caused nurses' pay differential, not discrimination

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The the pay differentiation between three black nursing professionals and their white colleague at the Tshwane University of Technology (TUT) was a result of the uncapping of salaries, not social discrimination, the Labour Appeal Court has ruled, reports MedicalBrief. The court laid responsibility for the uncapping at the door of the unions.

Acting Judge Kate Savage, with Judge Philip Coppin and Acting Judge Daisy Molefe concurring, set aside a 2019 judgment that found that differentiation in the salaries of the four constituted unfair discrimination based on social origin. Constituting social origin in this case were the institutions that Paul Maraba, Lydia Khwinana and Matilda Legwale worked for before becoming TUT employees in 2008.

Sarina Kloppers, the white colleague who was paid more than the black trio, originally worked for the Pretoria Technikon. It was a largely white institution during apartheid. Acting Judge Sandile Mabaso found in 2019 that TUT’s action amounted to ‘perpetuation of inequality and this advantage to others’.

However, Savage set aside the judgment, saving TUT from having to retroactively increase the salaries of the three nurses back to April 2011. She found in favour of the university’s appeal argument that the pay differentiation was a result of the uncapping of salaries in 2011. The capping meant salaries of those employees who earned more based on the historical employer would not receive salary increases in their respective notches until there was parity.

Unions had fought for the removal of the salary capping and won. ‘The result was that Kloppers’s salary was, as with other employees who had had the cap on their salaries lifted, increased to more than that received by the respondents although all were employed as professional nurses on grade 9,’ ruled Savage.

It was accepted the salary differentiation was the result of the uncapping of salaries after the TUT merger. This did not amount to unfair differentiation on the basis of social origin. ‘In finding differently, the Labour Court erred. For these reasons, appeal succeeds.’

The judgment notes:

The appellant accepted that there was differentiation in the amounts paid to the respondents and Ms Klopper. The evidence indicated that this differentiation arose from the decision to uncap salaries, a decision which was made in response to labour demands to this effect and so as to maintain labour peace.

The unrefuted evidence before the Labour Court was that the decision to uncap salaries was applied across the three institutions which had been merged into the appellant and across different occupational categories and grades. There was therefore no evidence that the decision to uncap salaries was applied only to the previously advantaged campus of Pretoria or limited to particular occupations or job grades.

Whether there has been differentiation on a specified (or unspecified) ground is a question which must be answered objectively. The evidence placed before the Labour Court showed that the differential treatment that arose from the decision to uncap salaries was not attributable to the respondents’ social origin. As much was evident from the fact that employees such as Mr Basini, who although employed at a previously disadvantaged campus, enjoyed the benefit of a higher salary after the cap was removed from his salary, despite the geographical location at which he was employed.

It follows that while the decision to uncap salaries did have the effect of differentiating between people employed in the same occupation and job grade, this was not shown to have occurred on the basis of their social origin. Ms Klopper’s salary was uncapped in the same manner as it was for other employees employed in different occupational categories and grades across all three of the appellant’s campuses.

The unrefuted evidence before the Labour Court clearly indicated that the differentiation which occurred as a result of the uncapping of salaries after the merger did not amount to unfair differentiation on the basis of the respondents’ social origin. It follows that the appellant proved that there was not unfair differentiation against the respondents and consequently that it had not discriminated against the respondents on this basis. In finding differently, the Labour Court erred.


Full Labour Appeal Court judgment (Open access)

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