The remainder of the positions were earmarked to be filled from the ranks of the existing protection officials once certain processes, including training and mentoring, were completed, according to parliament. But the existing officers approached the labour court in January 2017 complaining about wage discrimination in terms of the provisions of the Employment Equity Act. The new officers were earning up to R150,000 more than the existing team of protection officials.
In court papers, parliament argued that it had invited candidates from the SAPS to apply as its existing protection officers did not have the necessary capabilities.
In their court application, the existing officials sought an order which would force parliament to remunerate them and provide them with the same terms and conditions of employment as the new recruits. They also wanted compensation “for having been discriminated against”.
The applicants premised their case on the provisions of the Employment Equity Act that states that a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on the grounds listed in section 6(1) of that law, is unfair discrimination.
“There is no justifiable or fair reason for the wage disparities and the said disparities constitute discrimination on an arbitrary ground,” they alleged and asked the court to rule that the decision to pay the chamber support officers higher salaries as “capricious, unjustifiable and arbitrary”.
In a ruling delivered last Wednesday, the court said for the applicants’ pleaded ground of arbitrary discrimination to qualify as such, they needed to show that it constituted grounds based on attributes and characteristics which had the potential to impair their fundamental human dignity or to affect them adversely in a comparably serious manner to a listed ground.
The court found the applicants’ case could not succeed. “The applicants failed to allege that the reason for differentiation is some characteristic that impacts upon their human dignity. They did no more than attempting to describe the difference in pay as arbitrary, capricious, unfair, unreasonable and unjustifiable,” said judge Prinsloo.
She found that although the applicants’ unhappiness with parliament employing police officers at higher salaries than theirs, despite their longer service with the institution, was understandable.
The judge however said notwithstanding the fact that the differentiation in salary might be unfair or irrational, it did not change the fact that the grounds raised by the applicants did not involve a level of injury to human dignity, comparable to a listed ground and they did not constitute an arbitrary ground of discrimination.
“The applicants have failed to make the minimum sufficient allegations to sustain a claim for unfair discrimination within the meaning of section 6(1) of the Employment Equity Act. In short, arbitrary conduct is not, in itself, a ground of discrimination; only conduct based on a ground of discrimination that is arbitrary is actionable; and to be actionable, the ground must be analogous to a listed ground,” said Prinsloo.
The court dismissed the case but it did not make orders for costs, saying this was in the interest of justice and fairness.