South Africa’s courts are dealing with more cases around unfair discrimination, which have arisen since the introduction of the “equal pay for equal work” provisions of the Employment Equity Act (EEA) in 2014.
According to Bradley Workman-Davies, director at Werksmans Attorneys, the EEA created this right and protection for employees by introducing inequality of pay where the same work, or work of equal value is performed.
However, Workman-Davies said that it has been left up to case law to test the principles provided for in the law.
Below he outlined a recent case which provided some guidance on the issue:
In the case of Sun International Limited v Commercial and Allied Workers Union, the Labour Court considered the claim of a female surveillance auditor who alleged that she ought to be remunerated at the same level as a male, white colleague who also occupied the same position at Sun International.
The Commission for Conciliation, Mediation and Arbitration found in her favour and ordered the pay gap (she was paid about 51% of her colleagues salary) to be eliminated.
On review at the Labour Court, it was found that although the work was the same work – and a difference in remuneration was admitted by both parties – this discrimination was not unfair.
The reasoning of the court to come to this conclusion cannot be faulted, Workman-Davies said.
He noted that the Department of Labour’s Code of Good Practice provides that where a difference between remuneration exists, the difference may be justified, and therefore fair, based on the individuals’:
- Respective seniority or length of service;
- The respective qualifications;
- Competence or potential above the minimum acceptable levels required for the performance of the job;
- The individuals’ respective performance;
- Quantity or quality of work;
- Provided that employees are equally subject to the employer’s performance evaluation system.
“In this case, although her colleague performed the same work, he had more years of service and seniority, and a higher Private Security Industry Regulatory Authority (PSIRA) grade,” Workman-Davies said.
He added that the court referred to a ‘market forces defence’ – this justification provided that when the male colleague was recruited – his existing salary was higher than that of the female employees.
Accordingly, on the basis of a willing buyer – willing seller, Sun International had to offer him a higher starting salary, to incentivise him to accept their offer, and also took into account that his higher qualifications and experience demanded a premium, said Workman Davies.
“The higher salary – being what the male colleague demanded and what the market justified – was accordingly a market-related force justification for the difference between his salary and that of the female employee, said Workman-Davies.
“The court accordingly found that although there was a difference, this was not due to race or gender and was justified by the market-related premium attached to the other employee’s better experience and qualifications.
“Salary differences may always provoke dissatisfaction, but provided that employers are able to rationally justify why one person is better paid than another, on the basis of the factors which are fair in terms of the Code of Good Practice, the discrimination is not unfair.”