EMPLOYMENT EQUITY UPDATE

Transcription

1 EMPLOYMENT EQUITY UPDATE Issue 5 The CCMA continues to receive a high volume of employment equity case referrals and requests for equal pay training interventions. In this issue we look at some of the equal pay cases heard during the period January to March 2016 and the key learnings emanating from the cases. IMPLEMENTATION UPDATE An Employment Equity Act briefing session was held for the second panel of competent Commissioners on the 25 th to the 26 th February Further briefing sessions for the first panel were held on the 10 th to 11 th March More training for Commissioners will be held on the 8 th to 10 th June The first awareness advocacy will be held during the second quarter of the 2016/17 financial year. Roadshows will also be held in collaboration with the Department of Labour.

2 EQUAL PAY FOR WORK OF EQUAL VALUE CASES Summary by Commissioner Kagiso Nthite Commissioner Kagiso Nthite Listed Grounds Race In RFBC37293 the applicant, a coloured employee, alleged that he was paid less than his white counterpart whilst they both performed the same work. The respondent justified the differentiation by alleging that the applicant was in charge of 43 local distance trucks whilst the comparator was responsible for 90 long distance trucks. The respondent further stated that there was another coloured employee who also earned above the applicant s remuneration as he also had greater responsibilities. The Commissioner found that there was no unfair discrimination. In MP African team leaders alleged that they were paid less than their white counterparts in three differing departments, namely, administration, engineering and production. In administration, the Commissioner found that some Africans earned more than whites, in engineering one white earned less than all the Africans and in production two Africans earned the same as the whites. The Respondent disputed that the differentiation was not as a result of race. The Commissioner found that there was no evidence to suggest racial discrimination and thus found no unfair discrimination. In ECPE the Commissioner found that there was no racial discrimination. It was found that there was wage disparities. The applicant performed the same work as his white counterpart who earned higher. However it was found that the pay disparity was based on length of service and experience. The Commissioner found that all employees who started working in the same year earned equally and thus those who had long service earned more. In GAJB the Commissioner found that the applicant failed to challenge the evidence of the respondent that the pay disparity was not based on race but was as a result of a month salary difference due to the financial constraints of the respondent. It was found that an agreement was reached between the applicant and the respondent to pay the wages due to the applicant the next month, which was indeed paid and thus no unfair discrimination was found.

3 Arbitrary Grounds In KNPS the applicants alleged that they performed the same work as the comparators but were paid at a lower level than the comparators. One of the applicants compared himself to a deceased employee who had actually joined the respondent at a slightly higher salary as there was no national standardisation of salaries in municipalities. The Commissioner dismissed his case. For the other two applicants, it was found that the respondent did not have a justifiable explanation for the disparities. The Commissioner found that there was unfair discrimination and ordered compensation for the unfair discrimination and damages for the loss in salary difference. In KNPM the applicant alleged that she performed work of the same value as her comparator but was paid less. The Commissioner found that there was no evidence of discrimination and that both positions were graded during the job evaluation system which was ongoing and the duration of the process did not suggest that there was unfair discrimination. In ECPE the Commissioner found that the applicant failed to make a case of unfair discrimination because her comparator had qualifications and experience which are provided for in the remuneration policy. It was found that in terms of performance, the applicant was not competent. No unfair discrimination was found. In In GAJB the applicant failed to provide facts relating to his comparators such as date of employment, qualifications, working hours and their daily duties. The respondent argued that the comparators started working before the applicant and thus the fact that they all had the same title did not suggest that they should earn the same. The Commissioner found that there was no unfair discrimination. In GATW the applicant alleged that the differentiation was based on qualifications and was thus excluded from scarce skill allowance as she had less years of service. She alleged that she performed the same work as her comparators. The respondent disputed that the applicant has a skill and that she was an auditor because she was giving support to the auditors and thus her work was different from that of the auditors. The Commissioner found that the applicant performed different work from that of the comparators and found that there was no unfair discrimination.

4 KEY LEARNINGS FROM CCMA DECIDED EQUAL PAY CASES Applicants fail to link equal pay cases to a discrimination ground. Most of equal pay cases are mere allegations no prima face case of discrimination). Applicants fail to provide proof of differentiation from comparators. Errors committed by Human Resources Officers or Payroll Officers is not justification for unfair differentiation. Applicants still continue to compare themselves with wrong comparators. Applicants need to do more spade work in preparing their cases. KEEP CALM AND SHARE LEARNINGS

5 STATISTICS OF EMPLOYMENT EQUITY ACT CASES REFERRED JANUARY TO MARCH 2016 ISSUE EL PE FS JB EK TW KZN LP MP NC NW WC HO NATIONAL Arbitrary Equal pay Sexual Harassment Race Sex 1 1 Disability HIV Status Colour Protection of Rights Age Psychological/ Medical Testing Religion Belief 1 1 Birth Gender Sexual Orientation Culture Political Opinion 0 Marital Status 0 Total The number of referred cases has decreased in comparison to 696 referrals during the third quarter of 2015/16 financial year.

6 EMPLOYMENT EQUITY ACT CASES HEARD AND OUTCOMES - JANUARY TO MARCH 2016 CASES HEARD OUTCOMES Pre-Conciliation 19 Unresolved 375 Conciliation 596 Settled 175 Arbitration 249 Withdrawn 140 In Limine 26 Postponed/ Part-Heard 70 Con- Arb 9 Out of Jurisdiction 31 Rescission 1 Dismissed 29 Pending Outcome 36 Awards Rendered 44 TOTAL The number of cases heard has increased in comparison to 872 cases heard during the third quarter of the 2015/16 financial year.

7 MATTER OF INTEREST PAY DIFFERENCE DUE TO GEOGRAPHICAL LOCATION Summary of judgment by Commissioner Ronel De Wet Commissioner Ronel De Wet The issue Whether the failure to pay an employee in one province the same as an employee in another province, constitutes unfair discrimination based on an unlisted or arbitrary ground? In Duma v Minister of Correctional Services and Others [2016] ZALCCT 6 (2 February 2016) the court held the ground of geographical location as a basis to prejudice an employee, by paying that employee less for the same work as another in a different location, has the ability to impair the dignity of that person in a manner comparable to the listed grounds (under Section 6(1) of the EEA) and amounts to discrimination. Background Duma is employed by the Department of Correctional Services in the Western Cape as a Senior Correctional Officer: Manager Legal Services. She referred an unfair discrimination dispute to the Labour Court, claiming that she was unfairly discriminated against on the ground of geographical location of her post. According to her there are disparities between various employees who are performing work with the same job description but at different rates of remuneration. The facts Significantly, instead of justifying any such differentiation, it appears from the facts that the Respondent in its defense, chose to deny that it had discriminated against Duma.

8 The Court applied the unfair discrimination definition as it was prior to the 2014 amendments and in doing so, referred to the test stipulated in Harksen. It is nonetheless clear that the Court was influenced by the subsequent amendments in coming to its conclusion. In brief, the Court accepted that Duma met the onus of proving that she had been unfairly discriminated against on the following submissions: She was treated in an arbitrary manner on a ground that impacted on her dignity; the Respondent failed to show it was necessary to distinguish between the comparable positions in the different provinces, or that there was a purpose for the differential treatment; any distinction between employees based solely on the area of the country in which they work is, given our history, anathema to the society envisaged by the Constitution The order The Labour Court ordered payment amounting to the difference between remuneration she what she should have received had her post been correctly graded and that she actually received, retrospectively from three years before she referred the dispute to Court and up to date. It was accepted the claim for the period prior to that had prescribed. Comments The Regulations provide for factors that may justify differential treatment. Where an Employer can justify differential treatment based on, inter alia, cost of living or shortage of skill, such differentiation may under those circumstances be justified and not amount to unfair discrimination. It is important to note, the Respondent in this regard, failed to refer to any justification or purpose for the differentiation. SENZ UMEHLUKO MAKING A DIFFERENCE