If someone is unfairly discriminated against, the reason for this discrimination must be arbitrary or subjective. In legal terminology, this reason is called an ‘arbitrary ground’.

These grounds harm a person’s dignity or affect them in an equally negative way. If someone relies on an arbitrary ground to prove that he or she was unfairly discriminated against, they must prove that these grounds were not rational nor justifiable.

As we’ve mentioned in previous articles, the 2014 amendments to the Employment Equity Act introduced the principle of Equal Pay for Work of Equal Value. This has led to cases being brought to the Commission for Conciliation, Mediation and Arbitration (CCMA) where allegations of unfair discrimination – based on this principle – have been levied.

Here is one such case based on an arbitrary ground of discrimination.

A recruitment official and organiser (employee x) was employed by a trade union on a fixed-term performance contract. He claimed that he was unfairly discriminated against because a colleague was (employee y) performing the same or similar work earned twice what he did. The only reason for this claim was that this employee y had a drivers licence and employee x did not have one.

The Code of Good Practice on Equal Pay allows employees to be remunerated differently if they are subject to the same performance evaluation system. This system must be consistently applied. In this case, this was true. Employee x failed to prove that he was the victim of unfair discrimination based on an arbitrary ground. The application was dismissed.

The issue that is difficult for employers is to have a system up front that justifies the differential. It is not good enough to start to look for these justifications when a challenge of unfair discrimination is made.

Contact Global Business Solutions

If you have a similar situation in your company that involves cases of Equal Pay For Equal Work For Equal Value then you should contact our equal pay specialist, Natalie Singer and the team to help you resolve these queries. Follow this link to contact her.