Every employee has the right not to be: (a) unfairly dismissed or (b) subjected to an unfair labour practice.

Section 186(2) of the Labour Relations Act 66 of 1995 defines an unfair labour practice in more detail: “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving – 

a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; 

b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; 

c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and 

d) an occupational detriment, other than dismissal, in contravention of the Protected  Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act. 

Tshabalala v University of South Africa (2018) 9 BALR 1032 (CCMA) is a recent arbitration decision that highlighted an unfair labour practice which related to remuneration and job grading. An employee after commencing employment with her employer as a switchboard operator was elevated to the post of project manager. Her new job description described her as a manager which she claimed entitled her to a higher salary. The employee claimed an unfair labour practice occurred around, 30 May 2017, when her employer failed to confirm her status as a manager on a "P6" (a higher salary level using the Peromnes salary grading system) subsequent to a job evaluation process. The Peromnes salary grading system identifies and measures levels of complexity of a position from a number of different perspectives. The employee claimed that she was subjected to an unfair labour practice.

The Commissioner noted that the employee had lodged several grievances over her position and that the employer had not explained why or how an approved job description that described the employee as a manager could be unilaterally changed.  

The employer tried to challenge the jurisdiction of the CCMA to arbitrate the dispute, claiming that a job grading dispute is not a benefit. The employee opposed this point in limine. The CCMA ruled that it does have jurisdiction to arbitrate the dispute on the basis of jurisprudence in the case of Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC). The Tshabalala case, confirmed that the term benefit also includes matters involving disputes about remuneration that are a right or entitlement that involves the fairness of an act or omission in respect of a policy or practice subject to the employer’s discretion.       

The employer was unable to explain the decision to sign-off on a job description and only to later change the title based on the results of a job description exercise. There was sufficient evidence that the employee was a manager and her employer had acted unfairly by removing her designation and not paying her according to her status. The employer was ordered to restore the employee's title to manager and place her on the applicable salary grade.  

Morag Phillips, Executive Director, from 21st Century (a well-known South African Rewards and Remuneration consulting business) shared some insight on a fair job grading process:"If there is equality in a salary structure this in turn is a framework for managing pay decisions from new appointments all the way through a career progression. To assist organisations to implement a comprehensive and coherent remuneration strategy, the cornerstone and starting point is a sound set of role profiles. These profiles then enable accurate, fair and transparent job evaluation and grading. Without an accurate role profile, the job evaluation may be incorrect, which is also why a job cannot be graded on a job title alone. A robust job grading process is the process of determining systematically and as objectively as possible, the level of responsibility of one job in relation to others with no regard to person factors, job titles or reporting lines. It is done based solely and objectively on the job profile and ignores job titles. In effect, the profile is followed by job evaluation, both of which then form a foundation for a remuneration structure…"

In conclusion, the Tshabalala case highlights why a proper job grading system is critical for a business and the consequences an employer may face if the process is not carried out fairly. While some employers may view job grading as a costly exercise, when conducted effectively a job grading system can assist employers to manage equality within a salary structure. 

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Written by: Olivia Timothy HR Manager Herbert Smith Freehills (South Africa) 

Issued By: The Lime Envelope
On Behalf Of: 21st Century

For Media Information: Bronwyn Levy
Telephone: 011 467-9233/8998
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