The amendments to the Employment Equity Act, 55 of 1998 (EEA), including the equal pay provisions, came into operation on 14 August 2014. The first of the equal pay litigation is now coming before the courts and the Labour Court was recently tasked with deciding the issue of pay discrimination in the matter of South African Municipal Workers Union (SAMWU) and Another v Nelson Mandela Bay Municipality (2016) 2 BLLR 202 (LC).

Background

The applicant, Ms. Tetyana (Tetyana) was one of five assistant directors in the respondent's human settlement Directorate. She was appointed in 2010 on salary grade 15. Three other assistant directors in the division were also remunerated on grade 15 and one was on grade 16.

Tetyana complained that (i) she was remunerated at a lower salary than the two men appointed at the same time that she was, and (ii) one of the assistant directors was on grade 16 and remunerated at that grade whilst she was remunerated at grade 15.

Tetyana alleged that her differential treatment was as a result of her gender.

The employer, Nelson Mandela Bay Municipality, justified the difference in pay on the basis that administrative disorder had caused the differences in grade and remuneration. Furthermore, the employer said that, the two male employees appointed at the same time as Tetyana were existing employees prior to the appointment.

The issue to be determined by the Labour Court was whether the difference in grading and remuneration amounted to unfair discrimination on the listed ground of gender.

Considerations of the Court

Section 6(4) of the EEA provides that if there is a difference in the terms and conditions of employment between employees of the same employer who perform the same or substantially the same work or work of equal value, and the difference is based (directly or indirectly) on any one or more of the listed grounds in the EEA, the difference amounts to unfair discrimination.

In equal pay disputes specifically, the employee must show that there is a causal nexus between the differentiation on the basis of listed grounds, in this instance gender, and the relevant terms and conditions. Put differently, there needs to be a sufficient link between the difference in treatment and the prohibited ground on which the employee has relied. Where there are other justifiable reasons for the differential treatment it is unlikely that the differential treatment will amount to unfair discrimination.

Once unfair discrimination on a listed ground is alleged, the employer must prove, on a balance of probabilities, that such discrimination (i) did not take place as alleged; or (ii) is rational and not unfair, or is otherwise justifiable.

Finding

The Court confirmed that Tetyana was required to show that there is a causal nexus between her gender and the treatment afforded to her in respect of the grading of her post and remuneration.

The court emphasised the fact that it is not sufficient for the employee to highlight the differential treatment and claim baldly that the differentiation may be because of a listed factor such as gender. On the evidence before the court, there needs to be no other justifiable reason for the differential treatment and the link between the listed ground and the differential treatment must be sufficiently close so as to be the probable cause for the difference.

The Court accepted that the administrative disorder and Tetyana's colleagues' previous length of service were likely to have been the cause of the difference in treatment. It could not be inferred that the differential treatment was because the employee was female. The Court found that other reasonable inferences could be drawn from the facts.

In light of the above, the Court found that SAMWU and Tetyana failed to show the existence of unfair discrimination, as contemplated in section 6(4) of the EEA. Tetyana's claim was therefore dismissed.

Points to remember

Discrepancies in the treatment of employees are common. However, more often than not, there is a reason for the differential treatment, e.g. performance, length of service and seniority. Employers should be mindful of differences in terms and conditions and ensure that where differential treatment exists that there is a justifiable reason for it. Employers are encouraged to conduct an audit into their terms and conditions of employment and ensure that any unequal treatment does not flout the provisions of the EEA. 

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