Subscriber's Query .....
What will be a ground for an 'equal pay for equal work' claim under unfair discrimination, where both employees were appointed to the same job at roughly the same time and perform the same work but are paid at different salary levels? The lower paid employee wants to base a case on arbitrary grounds, but is struggling to find a ground to base her case on.
Worklaw's Response ......
The first place to check for a factor justifying the differentiation in salaries is the Employment Equity Regulations. Clause 7 says:
"If employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following grounds:
(a) the individuals' respective seniority or length of service;
(b) the individuals' respective qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;
(c) the individuals' respective performance, quantity or quality of work, provided that employees are equally subject to the employer's performance evaluation system, that the performance evaluation system is consistently applied;
(d) where an employee is demoted as a result of organisational restructuring or for any other legitimate reason without a reduction in pay and fixing the employee's salary at this level until the remuneration of employees in the same job category reaches this level;
(e) where an individual is employed temporarily in a position for purposes of gaining experience or training and as a result receives different remuneration or enjoys different terms and conditions of employment;
(f) the existence of a shortage of relevant skill, or the market value in a particular job classification; and
(g) any other relevant factor that is not unfairly discriminatory in terms of section 6(1) of the Act.
The cases have not favoured an employee who says "I don't know the basis or ground of the discrimination, but all I know is that I am paid less than others doing the same job (ask the employer why!). I don't believe it's on a listed ground (sex, race etc) but its arbitrary." The courts have required the applicant to tie the discrimination to some category. For example in Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others (C687/15)  ZALCCT 14 (19 April 2016) it was held (para 33) that it is not fair for an arbitration to run without the complainant being required to identify - and then being held to - the unlisted arbitrary ground of discrimination relied upon. The employee could possibly describe the ground of unfair discrimination as something like "a management error", but we are unsure how the courts would respond to this categorisation.