The future of equal pay claims in South Africa was one of the key focus areas at the twenty-ninth Annual Labour Law Conference last year, with University of KwaZulu-Natal senior lecturer Nicci Whitear-Nel exploring the issue within the context of unequal pay between genders.
She notes that, in the Global Gender Gap Index, which measures different aspects of gender-based inequality, South Africa ranks eighteenth out of 142 countries. However, when the specific category of wage inequality is examined, South Africa ranks eighty-third out of 142 countries, providing evidence that, although South Africa has made significant progress towards achieving gender equality in other areas, the gender pay gap remains a significant problem.
She points out that there have been amendments to the Employment Equity Act 55 of 1996 to address this aspect, which provide serious motivation for employers to ensure that they identify and eradicate pay inequality based on unfair discrimination in the workplace. The statutory inclusion of the “equal pay for equal work” principle includes equal pay for work of equal value and equal pay for work which is substantially similar, even if not identical. She adds that importantly, equal pay claims are not limited to claims relating to differing rates of remuneration, but also to differences in any benefits or terms or conditions of employment, such as leave, bonuses, and pension fund or provident fund provisions.
Regulations promulgated in terms of the Employment Equity Act, moreover, provide for the criteria and methodology by which work of equal value should be assessed. Whitear-Nel outlines that some of the criteria used to assess whether the work is of equal value require considering the responsibility involved in performing the work, the skills and qualifications required, the physical, emotional and psychological effort involved in the work, the conditions under which the work is performed and the geographical place and time when the work is performed.
“The regulations make it clear that employers have to be proactive in identifying inequality based on discrimination in the workplace pay and in eliminating it.”
She points out that, while the Labour Court is the primary adjudicator of unfair discrimination cases, the amendments to the Employment Equity Act increase the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA) to arbitrate such cases. “This is likely to result in an influx of claims brought there on this basis. However, all cases must first be referred to the CCMA for conciliation regardless of whether the CCMA or Labour Court will ultimately decide the case.”
Equal pay cases are a type of unfair discrimination case and must generally be referred to the CCMA within six months of the dispute arising. Whitear-Nel highlights that, in order for a case alleging unfair pay discrimination to succeed, the employee must be able to prove that they are paid less than their colleagues, specifically identifying colleagues who are paid more.
“It is not sufficient for the employee just to make a bald allegation of being paid less. The employee must also show that the work being performed is the same or of equal value to the comparators. “Next, the employee must identify the reason for being paid less – and it must be an unfairly discriminatory reason. Merely alleging unfair discrimination is not sufficient – the employee has to show what the discriminatory reason is and prove that the discriminatory reason is in fact the cause of the differentiation.”
She adds that it is not enough to show that the employer is paying different wages on an arbitrary, ad hoc basis. There must be a pattern relating to an unfair discriminatory reason. Such reasons would include race, sex, gender, religion, marital status and any other reason which would have a negative impact on the dignity of the employee if they were treated differently for that reason.
The most common reason for equal pay claims to fail is because the employee is not able to prove a link between the pay difference and a discriminatory reason.
“It is quite common for employees to refer equal pay disputes without even being aware of the reason why they are being paid less than their colleagues. “In such a case, the CCMA commissioner has a duty to interrogate the facts so as to try and identify the reason, but, ultimately, if an unfair discriminatory reason is not identified, the claim will fail. There is a great deal of preparatory work to be done before lodging an equal pay dispute,” Whitear-Nel warns.