GPH Workers' Equal Pay As SA Counterparts Bid Fails
Mpho Mokwape | Tuesday November 9, 2021 06:00
The workers who have been, amongst other things, fighting for equal pay for local and non-citizens were on Friday dismissed at the Court of Appeal (CoA) after failing at the Industrial Court.
The CoA dismissal was based on whether the lower court had exercised its discretion following the workers’ failure to adhere to court rules and failing to file some papers as instructed by the court.
Justice Monametsi Gaongalelwe said it was almost impossible to demonstrate how the lower court had failed to exercise its discretion judicially considering the history of the matter.
He explained that the conduct of the workers was not consistent with what they wanted as they failed to file the required documents at the lower court making it difficult for the matter to be dealt with on facts.
“The applicants failed to file required documents and the lower court dealt with the case despite many unanswered questions and exercised its discretion. On the strength of the factors presented the appeal is dismissed. Note that while a court of the first instance has a wide discretion on the matter an appellate court does not,” he said.
The judge said the discretion of the court was rather circumstanced since it could only interfere with the order of the court below where it was shown that the court had misdirected itself or had otherwise not exercised its discretion judicially.
The fact of the matter is that the 24 employers had on February 2019 instituted action at the Industrial Court seeking a determination in terms that declaring that the decision by GPH to pay them less than their South African counterparts to be unfairly discriminatory, that the practice to be in violation of the provisions of the hospital policy governing equal treatment of employees.
They further wanted that the court declares both applicants and non-citizen staff of the hospital in similar positions be salaried in terms of the hospital’s salary review cycle and that they are entitled to salary adjustment or increment to match their non-citizen counterparts in similar positions with cumulative effects of paying the applicants accommodation allowances.
Then the hospital also filed its statement of defence raising points that the first two declarations were not part of the claims mediated and therefore the court had no jurisdiction over them and that the first applicant was a general nurse who was excluded from claiming overtime payment by virtue of part of the Employment Act.
According to court documents after some postponements on account of delays on the part of the workers, the matter was set down and a consent order was reached.
The order was that the aggrieved workers file a detailed statement showing a compilation of the entitlements by not later than February 21, 2020. The workers allegedly failed to do so in terms of the court order and the hospital asked for the action to be dismissed on account of the workers’ conduct of persistent failure to comply with the law.
However the court decided to listen to the matter despite there being unanswered questions on material issues regarding the claims and on March 20, 2020, it dismissed the workers’ bid.
The workers then noted an appeal, which according to the papers was consistent with their conduct at the Industrial Court by filing out of time without having obtained any order for late filing.