Employees, employers, and social partners play crucial roles in implementing equal play legislation. To increase their chances of success in pay discrimination cases, employees should familiarize themselves with the criteria for success, while the CCMA and social partners can provide training and public advocacy campaigns. Employers should familiarize themselves with legislative requirements, such as justifications for pay differentials in EEA Regulations, to avoid perpetuating past discrimination and potentially indirect discrimination. They should also familiarize themselves with other legislation, such as POPIA, and emphasize internal grievance procedures and pre-dispute referral procedures. The Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value provides guidance on arbitrary grounds for unfair discrimination.
“Section 6(4) of the Employment Equity Act, 55 of 1998 (EEA), protects employees against unfair discrimination in respect of unequal terms and conditions of employment. The section provides as follows:
“A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.”
From the above provision, certain criteria can be identified that a complainant (employee) must satisfy to be successful in a claim u nder section 6 (4) of th e Act.
In the first instance there must be a difference in terms and conditions of employment. Although this principle is generally referred to as the “equal pay” principle, the EEA’s protection is broader in that it provides protection not only in respect of monetary compensation, but also in respect of other terms and conditions of employment, such as leave, overtime, work hours, notice periods, etc.
The second element that can be deduced is that the difference must occur between employees of the same employer performing the same or substantially the same work or work of equal value. This element requires that there must be a comparator. In other words, the employment conditions and the work of the complainant must be compared with those of at least one other employee of the same employer.
Thirdly, the difference in employment conditions must be on the grounds listed in section 6 (1) of the Act. These grounds include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, and political opinion, or any arbitrary ground. In this regard, it is important to note that section 6 (4) prohibits discrimination that is unfair. Therefore, a difference in conditions of employment is not automatically unfair. The Regulations in terms of the EEA make provision for circumstances where an employer is permitted or justified to provide different conditions of employment. Examples of the justifications include experience, qualifications and seniority.
An employee who alleges unfair discrimination may approach the Commission for Conciliation Mediation and Arbitration (CCMA) within six months after the conduct that allegedly constitutes unfair discrimination, to conciliate the dispute. If conciliation is unsuccessful, the CCMA can arbitrate the matter under certain circumstances. The CCMA will have the power to arbitrate the matter if the employee elects arbitration and earns below a certain amount, which is currently R241 110,59 per annum. In addition, the CCMA can arbitrate the matter if all the parties to the dispute consent to arbitration. If any of these circumstances are not present, then any party to the dispute may refer it to Labour Court for adjudication. “
Referrals to the CCMA in terms of section 6 (4)
“The CCMA often receives referrals from employees alleging unfair discrimination in terms of section 6 (4). The number of section 6 (4) referrals to the CCMA from 1 April 2022 to 28 February 2023, are reflected in the table below:22
| Equal pay referrals from 1 April 2022 to 28 February 2023 | |
| Ground | Number of referrals |
| Equal pay for work of equal value – Age | 13 |
| Equal pay for work of equal value – Arbitrary ground | 346 |
| Equal pay for work of equal value – Colour | 2 |
| Equal pay for work of equal value – Disability | 4 |
| Equal pay for work of equal value – Gender | 3 |
| Equal pay for work of equal value – Race | 11 |
| Equal pay for work of equal value – Sex | 1 |
| TOTAL REFERALS | 380 |
The statistics show that most of the referrals in terms of section 6 (4) are made on any arbitrary ground (91% of the total referrals). The courts have previously interpreted what an arbitrary ground means. In this regard, an arbitrary ground has been interpreted to be a ground analogous or similar to a listed ground and has the potential to degrade a person’s human dignity. Many complainants have failed to meet the criteria for an equal pay claim for being unable to show that the ground that they rely on is indeed an arbitrary ground. “
“For example, in the case of Naidoo and others v Parliament of the Republic of South Africa [2020] 10 BLLR 1009 (LAC) the employees alleged that the employer engaged in nepotism and in doing so unfairly discriminated against them on an arbitrary ground. The Labour Appeal Court endorsed a narrow interpretation of arbitrary ground and held that the ground must have the potential to impair human dignity. The court further held that the complainants are required to define the ground on which they claim unfair discrimination. This means that it is not sufficient for an employee to merely state that they have been discriminated against on an arbitrary ground. The employee must be able to show that the ground is related to or similar to one of the listed grounds in section 6 (1). In this specific case, the court rejected the employees’ claim that nepotism is an arbitrary ground.
Furthermore, in the case of Mangena & others v Fila SA (Pty) Ltd & others (2010) 31 ILJ 662 (LC), the complainants were unable to show to the court that they had been unfairly discriminated against. In this case, the complainants alleged that the employer discriminated against them on the ground of birth. They argued that the employer paid them differently to the comparator employee, because the latter’s father previously worked for the employer. It was alleged that when the father of the comparator died, the employer agreed to increase the comparator’s pay to assist the family. On this basis, the complainants alleged that the conduct of the employer constituted unfair discrimination on the ground of birth. The court rejected this claim, and held that unfair discrimination did not occur, as it was a mere act of charity by the employer, which the court regarded as a benign form of favouritism.
In this regard, it has been stated that discrimination cases often originate based on a vague notion of unfairness, rather than actual impairment to dignity. The outcome of the cases could be indicative of employees’ subjective sense that all pay differentials constitute unfair discrimination. This may raise an issue of awareness or lack of knowledge of the legal requirements on the part of complainants. However, it may also be indicative of employers’ reluctance to be transparent about pay differentials to their employees, which make it difficult for complainants to properly prepare for their matters. In this regard, certain CCMA arbitrators have made some observations in matters based on claims brought under section 6 (4). Some of th e observations include the following:
i. Lack of preparation, which entail a lack of information or evidence to support the claim.
ii. Lack of access to internal company information on pay grades and job evaluations.
iii. The difference in pay is often based on speculation or suspicion.
iv. There is a misconception that differentiation on its own constitutes unfair discrimination.
v. Employees do not always understand fair pay differentiation.
vi. Lack of understanding of pay grade systems. vii. Where their salary may be different to that of a comparator(s), employees do not always know why this is so, i.e., that it may be justified.
viii. Employers often use the Protection of Personal Information Act (POPIA) as a reason for not sharing pay information.
(CEE) ANNUAL REPORT 2022-2023 23
ix. Group referrals (arbitrary grounds) – it is difficult for a group of people to show a characteristic or attribute common to them all which the comparator(s) may or may not have.
x. Comparators often include people of the same race (when race is the ground) which makes it hard to link the differentiation to a ground of unfair discrimination.
” The above observations demonstrate that there are various role players (employees, employers, the CCMA etc.) in the successful implementation of equal play legislation. In this respect the following recommendations are made to increase their chances of success in pay discrimination cases, employees ought to familiarise themselves with the various criteria that they must satisfy to succeed in such claims. This will assist them to properly prepare their claims. In this regard the CCMA and other social partners can play a contributory role by providing training and engage in public advocacy campaigns to create awareness of the equal pay principle and its objectives. Employers also have an important role to play and could benefit from familiarising themselves with the legislative requirements, especially regarding the justifications for pay differentials in terms of the EEA Regulations. This would enable them to consider whether their reasoning for pay difference may not be perpetuating past discrimination and therefore potentially constitute indirect discrimination. For example, when employers provide for performance increases for certain employees who work overtime. This could constitute unfair discrimination based on family responsibility, if mothers of young children are unable to work extra time. Furthermore, employers should also familiarise themselves with requirements in terms of other legislation, such as POPIA to consider the extent to which they can assist in providing transparency. In addition, more emphasis should be placed on internal grievance procedures and other pre-dispute referral procedures, such as salary reviews. The Code of Good Practice on Equal Pay/ Remuneration for Work of Equal Value is also a useful source of guidance on the criteria for unfair discrimination contemplated in section 6 (4), as it provides key principles on arbitrary grounds. “
In Conclusion: Pay discrimination remains a global issue, and the Equal Pay Act (EEA) aims to combat pay inequality. Courts have interpreted the requirements for equal pay claims, emphasizing the need for employees to identify suitable comparators and employers to consider justifications for pay differences. Proper implementation requires workplace decision-making and a commitment from decisionmakers to address persistent pay inequalities.
Extracts from the 23rd Annual CEE Report – if you would like the full report Subscribe to Africa Talks Business.
Leave a Reply