The 2014 amendments to the Employment Equity Act (EEA) state that people who perform the same work, or work of similar value, must receive the same or similar remuneration. Recently, a number of significant labour law cases have been adjudicated which put this principle to the test.

Does this principle apply to all employees?

The case of South African Municipal Workers’ Union obo Sithole / Alfred Duma Local Municipality and others – (2018) 27 CCMA 1.17.1 answers this question. It also shows that an award that the Commission for Conciliation, Mediation and Arbitration (CCMA) makes is the salary at the time of lodging your application for an equal treatment claim and not that at the time of the discrimination taking place.

Facts of the case

The employee referred a dispute to the CCMA regarding the salary grade on which he was placed. This was after an integration of municipalities had happened. A settlement agreement was concluded with the employee to resolve the dispute. The employee then referred another dispute relating to unfair discrimination. The employee had to apply for condonation because of the delay and it was granted.

The employer contended that the CCMA lacked jurisdiction because the employee was earning above the threshold. (Currently the threshold is R205 433.) The Commissioner noted that it had been proven that the employee’s salary was above the threshold at the time of the referral. It was argued that the applicable salary was that which the employee earned at the time of the alleged discrimination (being 2000). The consequences of said alleged discrimination were “ongoing”.

The Commissioner held that it would be irrational to set a threshold that was relevant in 2000 when the referral was made in 2017. The CCMA may arbitrate the dispute only with the consent of the employers. This consent had not been granted by the employer. Accordingly, the Commission lacked jurisdiction to arbitrate the dispute. The application was dismissed.

All the rules of evidence still apply in equal pay cases

To succeed in a legal matter, a certain standard of evidence needs to be upheld. This is true for all legal proceedings. Equal treatment cases are no exception.

In Solidarity obo Clark and another / Eskom SOC Ltd – (2017)26 CCMA 6.12.25:

  • Project managers graded at salary level M14 took exception when two project managers were subsequently appointed on the grade M16 (a higher level).
  • The CCMA Commissioner noted that the EEA requires employees to refer disputes within six months of the Act or omission of the alleged discrimination.

Certain acts of discrimination may have continuing consequences, which makes applying for a late referral (beyond six months) unnecessary. If the alleged discrimination is continuing then the six months does not apply.

The employees had based their case on an “arbitrary ground” which was “the failure of the employer to comply with its policies and procedures”. The employer contended that the work performed by the employees on the two salary levels was different and that their job output was not of equal value. Where arbitrary grounds are relied on, the employees must prove that conduct amounts to unfair discrimination.

The employees had failed to indicate the differentiation they complained impaired their human dignity. No objective evidence had been presented by the employees to prove that the jobs were the same or substantially similar. The Commissioner ruled that the employees had failed to prove that they were discriminated against on any arbitrary or listed ground. The application was dismissed.

Unhappiness doesn’t mean that there is evidence of unequal treatment

The test in equal pay cases is that there must be unfairness and a discriminatory ground (including arbitrary) as well as the potential to impair the dignity of the employee. The regulations published with the Employment Equity Act (EEA) list numerous grounds that justify pay differentials. These include:

  • Regulation 7 of the EEA contains grounds to justify differences in remuneration.
  • If differences in the terms and conditions of employment are ‘fair and rational’, an employer can differentiate between employees by considering one or more of the following factors:
    – Seniority and length of service;
    – Qualifications, ability, competence or potential;
    – Performance, quantity and/or quality of work (if employees are subject to the same performance evaluation system which is consistently applied);
    – Demotion owing to operational requirements;
    – Temporary employment to gain experience and/or training (internships, learnerships);
    – Shortage of relevant skill or the market value in a particular job classification;
    – Any other relevant factor that is not discriminatory.

The case of Sethole and others v Dr Kenneth Kuanda District Municipality (Case no: JS 576/13, September 2017) (LC) illustrates how this section may be misinterpreted.

Facts of the case

The dispute was essentially about the employees’ appointment as Environmental Health Practitioners (EHP) rather than Pollution Control Officers (PCOs). Being paid less than another employee is certainly “differential treatment” but it can only amount to “discrimination” if the two employees are performing equal work or work of equal value:

  • PCOs are required to have a BTech degree or a four-year BSc degree plus a minimum of four years’ experience.
  • The post of EHP, in contrast, only requires a National Diploma.

The Court found that it is a fairly universal practice that different pay grades apply to different jobs and that there is no way this can be seen as discrimination in a legal sense. In addition to the above, the employees failed to identify the grounds on which the discrimination was established. The Court therefore dismissed the case.

As can be seen from the above cases, many employees are trying their luck with disputes involving the principle of Equal Pay for Work of Equal Value. As an employer, your processes and procedures need to solid so that no one can find a weak spot in your company’s pay systems to exploit.

Johnny Goldberg is a labour law expert.