When does differentiation of conditions of employment amount to unfair discrimination?

“The best way out is always through” – Robert Frost

Article by Michael Buitendag (Senior Labour Advisor)

Introduction

They say – “Talk is cheap, but money buys the whiskey.”

Have you ever come across a fellow employee discussing his/her salary or bragging about the figure reflecting on their payslip? Then you realize that you are being paid less but you are employed in the same position?

You’ve mentioned to your employer, that a fellow employee – employed in the same capacity as you, with the same number of years of service – earns more than what you do, he showed you his payslip; however, in response to your concern, your employer indicates that they will look into it, your concerns falling on deaf ears, and in the end, nothing becomes of it.

Leaving you with the question, what do you do?

While the salaries of others remain confidential information, the question arises, do they become public knowledge, once it is disclosed? The answer is no, not necessarily. It is important, by virtue of the POPI Act (Protection of Personal Information Act, 4 of 2013) to treat the information received as confidential, and if your employer has an internal HR department, bring your concerns directly to their attention.

HR will thus be tasked to determine whether there is a differentiation in salary, and if so, what the reason for that might be.

The differentiation may be justifiable, however, should the employer fail to provide you with reasons or you are not in agreement with the reasons provided, you have recourse.

What does the law say?

Section 6 (1) of the Employment Equity Act 55 of 1998 (EEA)

“An employer is not permitted to unfairly discriminate against an employee on one or more of the following listed grounds: 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 or any other arbitrary ground”.

The Act further provides for the following:

Section 6 (4) of the EEA

“A difference in terms and conditions of employment between employees of the same employer performing the same 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) or any other arbitrary ground is unfair discrimination”.

Therefore, it is clear from the above provisions, that should there be a differentiation of salary and the reason for the differentiation is based directly or indirectly on one or more of the listed grounds in subsection (1), or on any other arbitrary ground, it would constitute unfair discrimination.

For example, if a female employee employed as a sales executive, becomes aware that her male sales executive colleagues earn approximately R5 000.00 more than her, then the employer would have to justify as to what the rationale is for this.

How do we assess whether work is of equal value?

Regulation 6 of the EEA provides:

“(1) In considering whether work is of equal value, the relevant jobs must be objectively assessed taking into account the following criteria: (a) the responsibility demanded of the work, including responsibility for people, finances and material; (b) skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal; (c) physical, mental and emotional effort required to perform the work; and  (d) to the extent that it is relevant, the conditions under which the work is performed, including physical environment, psychological conditions, time when and geographic location where the work is performed.

(2) In addition to the criteria specified in sub regulation (1) any other factor indicating the value of work may be taken into account in evaluating work, provided the employer shows that the factor is relevant to assessing the value of the work.

(3) the assessment undertaken in terms sub regulation (1) and (2) must be conducted in a manner that is free from bias on grounds of race, gender or disability, any other listed ground or arbitrary ground that is prohibited in terms of section 6(1) of the act.

(4) Despite sub regulations (1) and (2), an employer may justify the value assigned to an employee’s work by reference to the classification of a relevant job in terms of a sectoral determination made by the Minister of Labour in terms of section 55 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997) which applies to the employer”.

Which Factors justify differentiation of conditions of employment?

In summary of Regulation 7 of the EEA, the following grounds may justify differentiation of conditions of employment (including remuneration):

(a) Seniority and length of service;

(b) Qualifications, ability, competence or potential;

(c) Performance, quantity and/or quality of work (provided that the employee’s performance evaluation system is applied consistently);

(d) Demotion to operational requirements;

(e) Temporary employment for gaining experience (such as training and learnerships);

(f) Shortage of relevant skill or the marker value in a particular job classification

(g) Any other relevant factor that is not discriminatory.

Should an employer rely on one or more of the above grounds to justify the differentiation of conditions of employment or salary, they must ensure that it is not biased or against any employee or group of employees. The differentiation must be applied proportionately.

What avenues of resolution are available to you?

Should your employer fail to provide you with valid or sufficient reasons, or fail to provide you with a justifiable ground for the differentiation of salary between you and the other employee concerned, section 10 of the EEA will provide you with an avenue within which to challenge the unfair discrimination.

Such disputes are referred to the CCMA, and the Respondent (your employer) will then bear the onus of proof to prove that the discrimination was fair.

Conclusion

Should you have any concern about your salary, or have become aware about another employee, in the same position as you, that earns a greater salary than you do; you should attempt to address the situation internally by approaching your manager and/or HR department to discuss your concern.

If the matter remains unresolved, remember to contact MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920 / 071 889 9682    

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku