EMPLOYMENT LAW
What is required of an employee to prove an equal pay for equal work claim? In South Africa, employers are statutorily prohibited from unfairly discriminating against employees. In a recent Labour Appeal Court (“LAC”) decision, Mdunjeni-Ncula v MEC, Department of Health and Another, the application of the so-called equal pay provision was considered in some detail. LEGAL FRAMEWORK The relevant statutory provisions prohibiting unfair discrimination are encapsulated in section 6(1) and section 6(4) of the Employment Equity Act, 1998 (“EEA”). Section 6(1) of the EEA provides the following: “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more 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, birth or any other arbitrary ground.” The phrase “any employment policy or practice” is widely defined and encompasses a wide range of employer practices that could be alleged to constitute unfair discrimination. Section 6(4) of the EEA, the so-called equal pay provision, is narrower in scope. It prohibits discrimination in respect of “a difference in terms and conditions of employment” only. It reads as follows -
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SEIFSA NEWS
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JANUARY / FEBRUARY 2022
“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 sub-section 1, is unfair discrimination.” This section requires a comparator. An employee must identify a person who is employed by the same employer, who is doing the same or similar work, or work of equal value, and who enjoys more favourable terms and conditions of employment. But even if a suitable comparator is found, the difference in terms and conditions of employment may not be based on a discriminatory ground or may be justified.
THE FACTS In Mdunjeni-Ncula, the Department of Health, Eastern Cape (“the Department”) advertised a position of Senior Legal Administrative Officer at a salary range between ZAR317 241.00 and ZAR771 078.00 per annum. The applicant employee applied for this position and was shortlisted and subsequently interviewed. She was offered the position at a salary of ZAR340 716 per annum. She accepted the offer on condition that she
