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CCMA Employment Equity Update

EMPLOYMENT EQUITY UPDATE

 

Issue 5

 

The CCMA continues to receive a high volume of employment equity case referrals and requests for equal pay training interventions. In this issue we look at some of the equal pay cases heard during the period January to March 2016 and the key learnings emanating from the cases.

 

 

 

EQUAL PAY FOR WORK OF EQUAL VALUE CASES

 

Summary by Commissioner Kagiso Nthite

 

Commissioner Kagiso Nthite

 

Listed Grounds

 

Race

 

In RFBC37293 the applicant, a coloured employee, alleged that he was paid less than his white counterpart whilst they both performed the same work. The respondent justified the differentiation by alleging that the applicant was in charge of 43 local distance trucks whilst the comparator was responsible for 90 long distance trucks. The respondent further stated that there was another coloured employee who also earned above the applicants remuneration as he also had greater responsibilities. The Commissioner found that there was no unfair discrimination.

 

 

In MP8535-15 African team leaders alleged that they were paid less than their white counterparts in three differing departments, namely, administration, engineering and production. In administration, the Commissioner found that some Africans earned more than whites, in engineering one white earned less than all the Africans and in production two Africans earned the same as the whites. The Respondent disputed that the differentiation was not as a result of race. The Commissioner found that there was no evidence to suggest racial discrimination and thus found no unfair discrimination.

 

 

In ECPE5643-15 the Commissioner found that there was no racial discrimination. It was found that there was wage disparities. The applicant performed the same work as his white counterpart who earned higher. However iwas found that the pay disparity was based on length of service and experience. The Commissioner found that all employees who started working in the same year earned equally and thus those who had long service earned more.

 

 

In GAJB23976-15 the Commissioner found that the applicant failed to challenge the evidence of the respondent that the pay disparity was not based on race but was as a result of a month salary difference due to the financial constraints of the respondent. It was found that an agreement was reached between the applicant and the respondent to pay the wages due to the applicant the next month, which was indeed paid and thus no unfair discrimination was found.

 

Arbitrary Grounds

 

In KNPS1538-15 the applicants alleged that they performed the same work as the comparators but were paid at a lower level than the comparators. One of the applicants compared himself to a deceased employee who had actually joined the respondent at a slightly higher salary as there was no national standardisation of salaries in municipalities. The Commissioner dismissed his case. For the other two applicants, it was found that the respondent did not have a justifiable explanation for the disparities. The Commissioner found that there was unfair discrimination and ordered compensation for the unfair discrimination and damages for the loss in salary difference.

 

 

In KNPM2105-15 the applicant alleged that she performed work of the same value as her comparator but was paid less. The Commissioner found that there was no evidence of discrimination and that both positions were graded during the job evaluation system which was ongoing and the duration of the process did not suggest that there was unfair discrimination.

 

 

In ECPE4132-15 the Commissioner found that the applicant failed to make a case of unfair discrimination because her comparator had qualifications and experience which are provided for in the remuneration policy. It was found that in terms of performance, the applicant was not competent. No unfair discrimination was found.

 

 

In In GAJB18828-15 the applicant failed to provide facts relating to his comparators such as date of employment, qualifications, working hours and their daily duties. The respondent argued that the comparators started working before the applicant and thus the fact that they all had the same title did not suggest that they should earn the same. The Commissioner found that there was no unfair discrimination.

 

 

In GATW7776-15 the applicant alleged that the differentiation was based on qualifications and was thus excluded from scarce skill allowance as she had less years of service. She alleged that she performed the same work as her comparators. The respondent disputed that the applicant has a skill and that she was an auditor because she was giving support to the auditors and thus her work was different from that of the auditors. The Commissioner found that the applicant performed different work from that of the comparators and found that there was no unfair discrimination.

 

KEY LEARNINGS FROM CCMA DECIDED EQUAL PAY CASES

 

     Applicants fail to link equal pay cases to a discrimination ground.

 

     Most of equal pay cases are mere allegations no prima face case of discrimination).

 

     Applicants fail to provide proof of differentiation from comparators.

 

     Errors committed by Human Resources Officers or Payroll Officers is not justification for unfair differentiation.

     Applicants still continue to compare themselves with wrong comparators.

 

     Applicants need to do more spade work in preparing their cases.

 

 

 STATISTICS OF EMPLOYMENT EQUITY ACT CASES REFERRED

 JANUARY TO MARCH 2016

  

 

 

ISSUE

EL

PE

FS

JB

EK

TW

KZN

LP

MP

NC

NW

WC

HO

NATIONAL

Arbitrary

4

17

9

77

31

14

37

14

10

10

6

147

 

376

Equal pay

18

11

1

28

18

11

30

6

4

11

 

29

1

168

Sexual

Harassment

 

1

4

9

1

6

4

7

5

1

3

9

 

50

Race

 

 

2

1

1

2

5

1

2

 

1

13

 

28

Sex

 

 

 

 

 

 

1

 

 

 

 

 

 

1

Disability

 

 

 

 

 

 

2

1

 

 

 

1

 

4

HIV Status

 

 

 

2

 

 

4

 

 

 

 

1

 

7

Colour

 

1

7

3

2

 

2

 

1

 

 

 

 

16

Protection of

Rights

2

 

 

1

 

 

4

 

1

 

 

 

 

8

Age

1

 

 

4

 

2

1

 

 

 

 

1

 

9

Psychological/ Medical Testing

 

 

 

 

1

 

1

 

 

 

 

 

 

2

Religion

 

1

 

2

1

1

1

 

 

 

 

 

 

6

Belief

 

 

1

 

 

 

 

 

 

 

 

 

 

1

Birth

 

 

 

1

 

1

 

 

 

 

 

 

 

2

Gender

 

 

 

1

 

2

2

 

 

 

 

1

 

6

Sexual

Orientation

 

1

 

1

 

1

 

 

 

 

 

 

 

3

Culture

 

 

1

 

 

 

1

 

 

 

 

 

 

2

Political Opinion

 

 

 

 

 

 

 

 

 

 

 

 

 

0

Marital Status

 

 

 

 

 

 

 

 

 

 

 

 

 

0

Total

25

32

25

130

55

40

95

29

23

22

10

202

1

689

 

 

The number of referred cases has decreased in comparison to 696 referrals during the third quarter of 2015/16 financial year.

  

EMPLOYMENT EQUITY ACT CASES HEARD AND OUTCOMES - JANUARY TO MARCH 2016

CASES HEARD

OUTCOMES

Pre-Conciliation

19

Unresolved

375

Conciliation

596

Settled

175

Arbitration

249

Withdrawn

140

In Limine

26

Postponed/ Part-Heard

70

Con- Arb

9

Out of Jurisdiction

31

Rescission

1

Dismissed

29

 

 

Pending Outcome

36

 

 

Awards Rendered

44

TOTAL

900

 

900

 

 

·       The number of cases heard has increased in comparison to 872 cases heard during the third quarter of the 2015/16 financial year.


 

MATTER OF INTEREST

PAY DIFFERENCE DUE TO GEOGRAPHICAL LOCATION Summary of judgment by Commissioner Ronel De Wet

Commissioner Ronel De Wet

 

The issue

 

Whether the failure to pay an employee in one province the same as an employee in another province, constitutes unfair discrimination based on an unlistedor arbitrary ground?

 

 

In Duma v Minister of Correctional Services and Others [2016] ZALCCT 6 (2 February 2016) the court held the ground of geographical location as a basis to prejudice an employee, by paying that employee less for the same work as another in a different location, has the ability to impair the dignity of that person in a manner comparable to the listed grounds (under Section 6(1) of the EEA) and amounts to discrimination.

 

Background

 

Duma is employed by the Department of Correctional Services in the Western Cape as a Senior Correctional Officer:  Manager Legal Services.  She referred an unfair discrimination dispute to the Labour Court, claiming that she was unfairly discriminated against on the ground of geographical location of her post.   According to her there are disparities between various employees who are performing work with the same job description but at different rates of remuneration.

 

 

The facts

 

Significantly, instead of justifying any such differentiation, it appears from the facts that the Respondent in its defense, chose to deny that it had discriminated against Duma.


The Court applied the unfair discrimination definition as it was prior to the 2014 amendments and in doing so, referred to the test stipulated in Harksen. It is nonetheless clear that the Court was influenced by the subsequent amendments in coming to its conclusion.

 

In brief, the Court accepted that Duma met the onus of proving that she had been unfairly discriminated against on the following submissions:

 

 

     She was treated in an arbitrary manner on a ground that impacted on her dignity;

 

     the Respondent failed to show it was necessary to distinguish between the comparable positions in the different provinces, or that there was a purpose for the differential treatment;

     any distinction between employees based solely on the area of the country in which they work is,

 

given our history, anathema to the society envisaged by the Constitution”’

 

 

The order

 

 

The Labour Court ordered payment amounting to the difference between remuneration she what she should have received had her post been correctly graded and that she actually received, retrospectively from three years before she referred the dispute to Court and up to date. It was accepted the claim for the period prior to that had prescribed.

 

Comments

 

 

The Regulations provide for factors that may justify differential treatment.  Where an Employer can justify differential treatment based on, inter alia, cost of living or shortage of skill, such differentiation may under those circumstances be justified and not amount to unfair discrimination. It is important to note, the Respondent in this regard, failed to refer to any justification or purpose for the differentiation.

 

SENZUMEHLUKO – MAKING A DIFFERENCE

Last modified onWednesday, 24 August 2016 08:22
Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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