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07 Dec 2021
BY Siphile Hlwatika

What is required of an employee to prove an equal pay for equal work claim?

In South Africa, employers are statutorily prohibited from unfairly discriminating against employees. In a recent Labour Appeal Court (“LAC”) decision, Mdunjeni-Ncula v MEC, Department of Health and Another, the application of the so-called equal pay provision was considered in some detail.

legal framework

The relevant statutory provisions prohibiting unfair discrimination are encapsulated in section 6(1) and section 6(4) of the Employment Equity Act, 1998 (“EEA”). Section 6(1) of the EEA provides the following:

“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, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.”

The phrase “any employment policy or practice” is widely defined and encompasses a wide range of employer practices that could be alleged to constitute unfair discrimination.

Section 6(4) of the EEA, the so-called equal pay provision, is narrower in scope. It prohibits discrimination in respect of “a difference in terms and conditions of employment” only. It reads 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 sub-section 1, is unfair discrimination.”

This section requires a comparator. An employee must identify a person who is employed by the same employer, who is doing the same or similar work, or work of equal value, and who enjoys more favourable terms and conditions of employment. But even if a suitable comparator is found, the difference in terms and conditions of employment may not be based on a discriminatory ground or may be justified.

the facts

In Mdunjeni-Ncula, the Department of Health, Eastern Cape (“the Department”) advertised a position of Senior Legal Administrative Officer at a salary range between ZAR317 241.00 and ZAR771 078.00 per annum. The applicant employee applied for this position and was shortlisted and subsequently interviewed. She was offered the position at a salary of ZAR340 716 per annum. She accepted the offer on condition that she would be remunerated at an amount of ZAR658 998.50 per annum. Her counter-offer was not accepted by the Department but, on 1 December 2014, she nevertheless reported for duty. However, she continued to request a review of her salary.

Following an attempt to resolve the issue internally, the Department offered her a revised salary of ZAR361 623.00 per annum.

She claimed that the payment of this salary constituted unfair discrimination on the grounds of gender. In support of her allegation, she referred to three comparators, who were all males. In the first instance, she cited an offer of employment at a salary of ZAR532 278.00 made to a Mr Ganyaza. The employee contended that she and Mr Ganyaza both met the minimum requirements relevant for the post and the only thing that separated the two of them was their gender difference. Significantly, however, Mr Ganyaza declined the offer of employment.

Secondly, the employee referred to an offer of employment made to Mr Manxiwa in the amount of ZAR340 716.00. Mr Manxiwa was not happy with the offer and requested an increase in remuneration. As a result, Mr Manxiwa was provided with a revised offer of ZAR610 716.00 per annum. The third comparator was a certain Mr Ngozi who was the employee’s subordinate in the workplace but who received a higher salary than the employee. Once again, the allegation was made that the difference in remuneration was based on gender. It appeared, however, that Mr Ngozi had been in the employ of the State from 1983 and had been a legal administrative officer since 2003. According to the Department, it was his length of service that resulted in him earning a higher salary.

The LAC held that the facts did not show that any of the three comparators mentioned by the employee justified the conclusion that the salary differentiation was based on a prohibited ground of discrimination.

In the first case, Mr Ganyaza was never employed by the Department. He was therefore not a suitable comparator. In the other two cases, the LAC appears to have accepted that Mr Manxiwa and Mr Ngozi were valid comparators, but nevertheless still found that there had been no unfair discrimination. In the case of Mr Manxiwa, the offer made was “unlawful” in the sense that it was higher than the salary prescribed for the post in terms of the employer’s policies. The LAC held that it can hardly be argued that a revised salary offer, which was unlawful, can be used as a basis to ground a case of discrimination of the basis gender.

In the case of Mr Ngozi, the LAC found that the difference in salary was justified on the basis of his length of service. This was manifestly a rational ground for the difference in remuneration. The LAC summarised its findings as follows:

“In summary, the appellant’s case was based on three alleged comparators which I have analysed in this judgment. None of these cases provides the requisite evidence to show that any differentiation in salary between the appellant and any of the three cases was based on discrimination sourced on the ground of gender or sex. In one case an individual had not been employed by the Department. In another, the claim of differentiation was based on an unlawful act and in the third, the differentiation was based on length of service.”

comment

This LAC decision is uncontroversial but nevertheless of some interest. Section 6(1) of the EEA prohibits discrimination on a wide range of grounds including any “arbitrary ground”. Despite the fact that the employee’s case was not based on an allegation that she was discriminated against on an arbitrary ground, the Court deemed it necessary to consider what constituted an arbitrary ground. This question has been the subject of some controversy as a wide interpretation of an arbitrary ground would extend the scope of the prohibition against unfair discrimination. In Naidoo & Others v Parliament of the Republic of SA, the LAC limited the scope of this ground by finding that an arbitrary ground is one that impairs an employee’s human dignity or has an adverse effect on an employee in a comparable or similar manner.

In this decision, a differently constituted Court cast doubt on this approach but instead found that it was not necessary to decide this particular question in the present case. It seems that at least some judges of the LAC will be prepared to reconsider the finding in the Naidoo decision.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica’s Employment department.

Siphile Hlwatika

Employment | Associate

shlwatika@ensafrica.com

+27 60 958 5155