In our workplaces, there are still instances of discrimination which are occurring and the cases that are going through our labour courts bear testament to this. We are fortunate to have legislation which prevents discrimination in the workplace however, unfortunately, situations still arise in which we see gender disparities coming to the forefront.
Employment Equity Act
The Employment Equity Act (EEA) promotes equal opportunity, as well as fair treatment, in employment relationships. It does this by eliminating unfair discrimination as well as by implementing affirmative action measures to amend the disadvantages in employment which were experienced by designated groups and to ensure their equitable representation in all occupational categories and levels in the workforce.
Section 6(1) states that:
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnical social origin, colour, sexual orientation, age, disability, religion, HIV status, conscious, belief, political opinion, culture, language, birth or on any other arbitrary ground.”
This means that if an employee accuses their employee of discriminating against them on the basis of their gender, the employee may institute legal proceedings against his or her employer. However, during the proceedings the burden of proof rests with the employee. What this means is that they have to provide evidence which proves that the employer unfairly discriminated against them based on gender disparties.
The case of Sun International Ltd v South African Commercial, Catering and Allied Workers Union obo Ramerafe and others (2019) 7 BLLR 733 (LC) has an element of alleged gender disparities and racial discrimination. It also shows how the courts deal with cases in which allegations of unequal pay practices are levied.
The employee was promoted to the position of surveillance auditor. Two years later, another employee was employed as a surveillance auditor on a salary almost twice that of the first employee. She claimed that this amounted to discrimination on the basis of race and gender disparities because the new appellant was a white man and she was a black female.
The company argued that he had been recruited from a security company and that he had better qualifications as well as far greater experience. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) held that there was no justification for the salary difference, which he found amounted to unfair discrimination. He ordered the employer to place the employee on the same grade as the other employee and to pay her the same remuneration.
On review the Labour Court found that the test was if the Commissioner had made a material error of fact or law which led to an unreasonable conclusion. The Commissioner had made several mistakes, the award lacked coherence and it consisted of a series of random observations:
- Firstly, the Commissioner had mistakenly assumed that the onus rested on the employee to prove unfair discrimination based on gender disparities.
- Secondly, the Commissioner had failed to distinguish between the various categories of “work of equal value” established by the Employment Equity Regulations of 2014.
The requirements for such claim are that:
- The employee must perform the same work as the person who earns more than them;
- The work is substantially the same• Where employees are in different jobs they must perform work of equal value.
In this case, it was evident that employee and the employee from the security firm performed the same work. For its defence the employer had relied on “market considerations” and the Commissioner had rejected the evidence. He had provided no reason for rejecting the employee’s justifications of seniority and higher qualifications.
Instead, the Commissioner had focused exclusively on the difference between the salaries. The Commissioner had erred further by making an additional order that the applicant must “eliminate all forms of salary disparity”.
The award was set aside and remitted to the CCMA.
Gender disparities in the workplace have not escalated to such violence as has been seen. This is probably as a result of the EEA having been in existence for the last 20-or-so years and that it has undergone a lot of refinement since its inception. It is vital that gender-based violence stops – in all areas of life – and that equanimity is restored.
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