The Employment Equity Act makes paying people – who do the same work at different rates of pay – an offence. This amounts to unfair discrimination. However, what often happens is that employees misinterpret this provision as can be seen in the matter of Food and Allied Workers Union obo Mloyeni and another / Rio Ridge 1377 CC t/a Woza – (2019) 28 CCMA 1.17.2.
Two employees, who were both employed as general assistants in the employer’s store, were paid at a lower rate than other general assistants at the employer’s store in East London.
One employee claimed that she was performing the work of a sales assistant and should be paid at that rate. The other employee claimed that the different rates paid in the store amounted to unfair discrimination and “exploitation”.
The CCMA Commissioner noted that both employees were paid the minimum rates set in the applicable sectoral determination. Where unfair discrimination is alleged on an arbitrary ground, the employee must prove that the conduct is irrational and indeed amounts to unfair discrimination:
- The first employee had never been requested to do sales work.
- The second employee was unaware of the sectoral determination.
- All employees at the Queenstown branch were paid the same rate.
In essence, the applicant was attacking the rationale of the sectoral determination. The employees had, accordingly, failed to prove that they had been unfairly discriminated against.
The application was dismissed.
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There are increasing numbers of unfair discrimination cases, based on differences in pay, which are now being lodged. Contact Natalie Singer, who is our equal pay expert, to make sure that cases such as these don’t see the inside of the CCMA.
Follow this link to contact her.