EQUAL PAY: A JOURNEY THROUGH THE CASES Talita Laubscher
THE LEGAL CONTEXT SECTION 6 No employer may unfairly discriminate, directly or indirectly, against any employee (including a job applicant), in any employment policy or practice, on a wide variety of grounds, such as race, sex, gender, HIV status, language, political opinion, age and religion or any other arbitrary ground. Differentiation based on the prohibited grounds in order if: o inherent requirement of the job o affirmative action in compliance with the EEA Harassment on any of the listed grounds constitutes unfair discrimination Page 2
THE LEGAL CONTEXT SECTION 11 BURDEN OF PROOF o Listed ground o o the employee must make out prima facie case the employer must prove: o o that the discrimination did not take place as alleged; or that it is rational, not unfair or otherwise justifiable o Arbitrary ground o the complainant must prove: o o o that the conduct complained of is not rational; that the conduct amounts to discrimination; and that the discrimination is unfair Page 3
THE LEGAL CONTEXT SECTION 6(4) A difference in terms and conditions of employment between employees of the same employer (complainant and comparator) performing the same work 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) (i.e. a listed ground or an arbitrary ground) is unfair discrimination. Page 4
THE LEGAL CONTEXT SECTION 6(4) A difference Causality: because of prohibited ground In terms and conditions Performing the same/similar work / equal value Complainant and comparator Page 5
THE MOST SIGNIFICANT DEVELOPMENTS Listed and arbitrary ground Jurisdiction Justifiable grounds Most significant developments Arbitrary ground must be specified Ground must cause the difference Comparator Page 6
LISTED / ANALOGOUS / ARBITRARY GROUNDS Ndudula v Metroail Sethole v Dr Kenneth Kaunda District Municipality Only two categories Burden of proof Same for analogous and arbitrary grounds unfair discrimination on an arbitrary ground takes place where the discrimination is for no reason or is purposeless Kadiaka rejected Crucial is impact on human dignity Impair or adversely affect the human dignity of the complainant, or be based on attributes which have the potential to impair human dignity in a comparably serious manner Page 7
LISTED / ANALOGOUS / ARBITRARY GROUNDS Ndudula & Others v Metrorail PRASA (Western Cape) (2017) Three categories, i.e. listed grounds, analogous grounds and arbitrary grounds? No, only two categories: listed grounds and analogous/arbitrary grounds Burden of proof the same iro analogous and arbitrary grounds Key is the impact on human dignity In this case: difference because of an error which was subsequently rectified Sethole & Others v Dr Kenneth Kaunda District Municipality (Sept 2017) Mere arbitrariness sufficient to amount to unfair discrimination under 6(4)? No It must impair or adversely affect the human dignity of the complainant, or be based on attributes or characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them in a comparably serious manner Approach in Kadiaka v ABI (1999) rejected Unfair discrimination on an arbitrary ground takes place where the discrimination is for no reason or is purposeless. Page 8
ARBITRARY GROUND MUST BE SPECIFIED GROUND MUST BE SPECIFIED SAB v Ntai NUMSA v Gabriels CONFIRMED IN Ndudula v Metrorail Sethole v Dr Kenneth Kaunda District Municipality IMATU obo Nengovela v Tshwane Metropolitan Municipality NEHAWU obo Totyi v ACSA Pioneer Foods v Workers Against Regression Page 9
THE ARBITRARY GROUND MUST BE SPECIFIED Ndudula & Others v Metrorail PRASA (Western Cape) (2017) Complainants did not identify arbitrary ground error not pleaded as the arbitrary ground Sethole & Others v Dr Kenneth Kaunda District Municipality (2017) In the absence of an identified ground it is not possible to determine in what respect the human dignity or right to equality of the applicants had been prejudiced or impaired, and in the absence of evidence to this effect, there can be no finding of unfair discrimination. IMATU obo Nengovela v Tshwane Metropolitan Municipality (2016) (CCMA) NEHAWU obo Totyi v ACSA (2016) (CCMA) Pioneer Foods v Workers Against Regression Ntai v SAB (2001) Litigants who bring discrimination cases to the Labour Court and simply allege that there was discrimination on some or other arbitrary ground without specifying such ground would be well-advised to take note that the mere arbitrary actions of an employer do not, as such, amount to discrimination within the accepted legal definition of the concept. NUMSA v Gabriels (2002) a complainant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds Page 10
2009 2012 CAUSALITY: THE PROHIBITED GROUND MUST CAUSE THE DIFFERENCE Louw v Golden Arrow Salary disparity must be because of race Mangena v Fila There must be a link between the differentiation and the prohibited ground Lungile v Chester Butcheries Employer may reward employees unequally, but the basis for differentiation must be objective and fair Page 11
THE PROHIBITED GROUND MUST CAUSE THE DIFFERENCE Ndudule v Metrorail SAMWU v Nelson Mandela Bay Municipality IMATU v Nengovela v Tshwane Abanqobi Workers Union obo Mali v Trojan Security NEHAWU obo Totyi v ACSA Page 12
CAUSALITY: THE PROHIBITED GROUND MUST CAUSE THE DIFFERENCE Louw v Golden Arrow (2000) (LC) Salary disparity has to be because of race Mangena v Fila SA (2009) (LC) There must be a link between the differentiation and the prohibited ground The prohibited ground must cause the difference Lungile v Chester Butcheries (2012) (LC) An employer may reward employees unequally even if they perform the same work, but the basis for differentiation must be objective and fair (e.g. years of service, greater skill) Ndudula & Others v Metrorail PRASA (Western Cape) (2017) (LC) An error caused the difference not a prohibited ground IMATU obo Nengovela v Tshwane Metropolitan Municipality (2016) (CCMA) Prior relevant experience actual reason for differentiation NEHAWU obo Totyi v ACSA (2016) (CCMA) Prior relevant experience actual reason for differentiation Abanqobi Workers Union obo Mali v Trojan Security (2016)(CCMA) Referred to Louw v Golden Arrow Not race, but gesture of goodwill SAMWU v Nelson Mandela Bay Municipality Administrative chaos, not race Page 13
THE PERMISSIBLE GROUNDS REVISITED Qualifications / competence Seniority Performance / quality / quantity Any other nondiscriminatory reason Skill shortage Red-circling Temporary placement Page 14
CAUSALITY: PERMISSIBLE GROUNDS Regulation 7: Permissible grounds Seniority Ndlela v Philani Mega Spar (2016) (CCMA) Seniority / length of service Qualifications / ability / competence Performance / quantity of work / quality of work Red-circling Temporary placement for purposes of gaining work experience Existence of shortage of relevant skill / market value Any other non-discriminatory reason Granting of retirement benefits based on years of service unfair Pioneer Foods v Workers Against Regression (2016) (LC) Ito collective agreement, new hires were paid at 80% of the rate; after 2 years, 100% Court held this was not irrational or unfair; differentiation based on length of service expressly recognised in Regulations and Code of Good Practice, s198d(2)(a) LRA Page 15
SENIORITY Ndlela v Spar Retirement benefits Pioneer v WAR Collective agreement with FAWU 80% rule / 2 years Subjective opinion of HR manager 5 year rule? Not irrational or unfair Length of service expressly recognised Page 16
EXPERIENCE NEHAWU obo Totyi v ACSA Totyi: CT Mapu: PE IMATU obo Nengovela v Tshwane Nengovela & Van Rensburg vs Molokoane No need for additional training Prior experience justified difference Molokoane 15 years experience in CT municipality Page 17
QUALIFICATIONS NEHAWU v Nquma v Department of Justice and Constitutional Development Nquma and Mthslana = drivers Nquma: Code 8 Mthsalana: Code 11 Ability to perform other functions justified higher pay Page 18
LOCATION Minister of Correctional Services v Duma Duma allegedly paid lower than colleagues in other provinces LAC rejected the claim Duma only compared herself with colleagues in 4 provinces; those in other 4 provinces paid similarly No evidence that her human dignity was adversely affected Not clear what arbitrary ground was only assumed that it was location Page 19
ADMINISTRATIVE CHAOS SAMWU v Nelson Mandela Bay Municipality Differences but no-one knew what the reason was Was clear that reason was not race or gender Court did not say administrative chaos justifies differentiation just that Ms Tetyana did not prove that the differentiation was because of race/gender Page 20
CAUSALITY: PERMISSIBLE GROUNDS Experience NEHAWU on Totyi v ACSA (2016) (CCMA) Totyi ACSA in Cape Town Mapu ACSA in PE No need for additional training, prior experience justified difference in pay IMATU obo Nengovela v Tshwane Metropolitan Municipality Nengovela and Janse van Rensburg vs Molokoane Molokoane 15 years experience in Cape Town municipality Qualifications NEHAWU obo Nquma v Department of Justice and Constitutional Development (2017) CCMA Nquma and Mtshalana messenger drivers Nquma Code 8; Mtshalana Code 11 Performance Ntai v SAB White training managers had received performance-based increases to prevent losing their skill Performance, not race the basis for differentiation Page 21
CAUSALITY: PERMISSIBLE GROUNDS Location Minister of Correctional Services v Duma (2017) (LAC) Alleged that Ms Duma was paid at lower rate because she was located in different province and that this was not fair LAC rejected Duma s claim Only compared herself with colleagues in 4 provinces; those in other 4 provinces paid similarly No evidence that her human dignity was adversely affected Not clear what the arbitrary ground was only assumed that it was geography Administrative chaos SAMWU v Nelson Mandela Bay Municipality (2016) (LC) No-one knew what the reason for the differentiation was Was clear that it was not race or gender Court did not say administrative chaos justifies differentiation only that Ms Tetyana did not prove that the difference was because of her race/gender. Page 22
A COMPARATOR MUST BE IDENTIFIED Mzobe v Fencerite BUT NOT if claim is not brought ito 6(4) Mutale v Lorcom 22 Employees of the same employer Ideally contemporaneous Must actually exist Page 23
A COMPARATOR MUST BE IDENTIFIED Mzobe & Others v Fencerite (2016) (CCMA) Ms Mshololo (tea lady) failed to identify a comparator No finding of discrimination made Both the comparator and complainant must be employees of the same employer UK and Canada permit comparisons across establishments and legal entities Comparator must actually exist Comparison with hypothetical comparator not permissible Ideally contemporaneous UK permits comparison with predecessor or successor, but must approach with caution If the claim is not based on 6(4) this requirement does not apply Mutale v Lorcom Twenty Two (2009) (LC) Mutale dismissed on trumped up charges after she had complained about the discrepancies in remuneration between white and black employees Page 24
THE CASES: THE SAME OR SIMILAR WORK OR WORK OF EQUAL VALUE Regulation 4 of EE Regulations 2014 The same Work is identical or interchangeable (Ntai v SAB) Similar Sufficiently similar although not identical or interchangeable Equal value Same value wrt reg 5-7 Reg 6: Responsibility (people, finances) Effort Skills, qualifications Conditions Mangena & Others v Fila SA (2009) (LC) Warehouse manager vs sale or return manager Louw v Golden Arrow (2000) (LC) Buyers vs warehouse supervisors Peromnes job evaluation Mzobe v Fencerite (2016) (CCMA) General workers (loading trucks, some tasks in the warehouse) v welder (Nicolas) and precision cutter (Raymond) If the work is not the same / similar / of equal value, the inquiry stops here no finding of unfair discrimination will be made Page 25
THE CASES: JURISDICTION Rayners v Uitenhage Hospital (2016) (CCMA) CCMA does not have jurisdiction if the complainant earns above threshold Famous Brands v CCMA & Others (2016 (LC) CCMA has jurisdiction irrespective of the number of applicants Page 26
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