JUDGMENT
VAN NIEKERK J
[1] When this matter was called in the trial roll on 16 February 2014, it was agreed that the court will determine a number of points in limine raised by the respondent.
[2] The applicant claims some R18 million by way of an equal pay claim, brought under s 6 of the Employment Equity Act (EEA). At the time he referred the claim to the CCMA, he had retired from the respondent’s employ. The papers disclose that the claim was referred late (i.e. outside of the time limit prescribed by s10 of the EEA), but that the CCMA condoned the late referral of the dispute. A certificate of outcome was issued on 5 March 2015 reflecting that as at that date, the dispute concerning alleged unfair discrimination referred for conciliation on 6 February 2015 remained unresolved.
[3] The applicant retired on 30 May 2014, after having been employed for some 42 years. The applicant’s statement of case is not a model of clarity. The comparators identified by the applicant appear to be managers engaged at the level at which the applicant was employed from mid-1998. Further, the EEA came into force only on 9 August 1999, and any equal pay claim brought under the statute could only have been competent from that date. That notwithstanding, the applicant appears to have quantified his claim on the basis of an income differential that he contends existed between him and his comparators as at the date of his retirement, extrapolated over the 42 years of his employment.
[4] The points in limine relate first to the applicant’s status as an employee as defined under the EEA and secondly, to the application of the Prescription Act. In relation to the first point, the respondent contends that at the time he initiated his claim, the applicant was not an employee as defined by the EEA and that the court accordingly has no jurisdiction to entertain his claim.
[5] The definition of employee contained in the EEA is similar to that contained in the Labour Relations Act. The definition expressly excludes independent contractors, and refers to persons who work for another person or for the state and who receives, or who is entitled to receive, any remuneration or any other person who in any manner assists in the carrying on conducting the business of an employer. It may well be that in a literal sense, a person whose employment is terminated on account of retirement is not a person who continues to work and who receives or remains entitled to receive remuneration.
