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THE Constitution of the Republic of South Africa guarantees the right of an employee not to be subjected to unfair discrimination.
Section 6 of the Employment Equity Act 55 of 1998 provides that no person may unfairly, whether directly or indirectly, discriminate against an employee. The Act provides that no person may discriminate in any employment policy or practice on any 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 and birth.
Discrimination often arises in the payment of employees' wages. Generally, the principle of "equal pay for work of equal value" is accepted in our law.
Uneven remuneration justified on the basis of employees' different levels of skills, experience, responsibility or expertise would not necessarily amount to discrimination.
Failure to apply the principle of equal pay for work of equal value does not always amount to unfair discrimination, provided the reason for distinguishing between higher-paid and lower-paid employees is to take affirmative-action measures consistent with the purpose of the Act or to distinguish, exclude or prefer any person on the basis of the inherent requirements of a job.
Any form of unfair discrimination will not survive scrutiny by the courts. In adjudicating a pay-discrimination claim, the court must establish whether the difference in pay amounts to unfair discrimination. In Louw v Golden Arrow Bus Services (Pty) Ltd, the court held that it is not an unfair labour practice to pay different wages for equal work or for work of equal value.
It is, however, an unfair labour practice to pay different wages for equal work or work of equal value, if the sole reason or motive for so doing is direct or indirect discrimination on arbitrary grounds or the listed grounds such as race or ethnic origin.
The courts have held that it is not discriminatory to differentiate between employees in order to place them in a similar position.
This happens for example when an employer pays employees with dependants additional remuneration in lieu of medical-aid contributions in order to place them in the same position as employees without dependants.
In the recent case of Mutale vs Lorcom Twenty Two cc, the employee claimed that she had been a victim of an unfair labour practice because she earned less than her white counterparts.
She also claimed that she had been dismissed for threatening to take her complaints to the Department of Labour.
In finding for the employee, the Labour Court held that there is no other ground on which the disparity of the computation of the employee's salary was founded other than her race. The employee earned much less than the comparator. The employee had a degree and the comparator had not attained matriculation.
l Lavery Modise is a partner and Sicelo Mngomezulu is an associate at Routledge Modise in association with Eversheds.