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Discrimination based on geographical location

Article provided by SchoemanLaw Inc

Employees in the same organisation are often remunerated differently. According to employment legislation in South Africa, no one may be unfairly discriminated against.

Section 6 of the Employment Equity Act1 as amended (hereinafter “the Act”), states that a difference in terms and conditions of employment between Employees of the same Employer performing the same or substantially the same work of equal value, that is directly or indirectly based on the grounds of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture language, birth or any other arbitrary ground amounts to unfair discrimination. In Duma vs Minister of Correctional Services & Others,2 a judgement in the Labour Court, the Court had to determine whether the failure to pay an Employee in one province the same remuneration as Employees in the same positions in other provinces constitutes unfair discrimination based on the arbitrary ground of ‘geographical location’.

In 2012, Duma referred an unfair discrimination dispute to the Labour Court, claiming that she was unfairly discriminated against on the arbitrary ground of the geographic location of her post. She claimed that, in her position as Western Cape Senior Correctional Officer, she was paid less than comparable positions in other provinces. Importantly, rather than attempting to justify any such remuneration differences that existed between posts in different regions, it appears the Employer in its defence chose to deny that it had discriminated against Duma.

The Labour Court was required to apply the unfair discrimination definition before it was amended in 2014 to include ‘discrimination on any other arbitrary ground’. The Court nonetheless found that the conduct infringed on Duma’s dignity. It found that it was entirely an arbitrary conduct for an Employee who is remunerated more, simply because they reside in a particular province.

The Labour Court awarded Duma compensation based on the difference between the remuneration she actually received, and what she should have received had she been correctly graded, retrospectively for the three years before she lodged her Labour Court claim and up to the date of the order. Going forward, the Employer was ordered, within a calendar month, to adjust her current remuneration to the required level.

The judgment demonstrates that the test for determining unfair pay discrimination based on an arbitrary ground requires more than a mere differentiation in the workplace, which the Act itself does not regulate, but must show it is irrational (i.e. there was no legitimate purpose for the differentiation). Moreover, when determining unfair (pay) discrimination on an arbitrary ground there must be an element to potentially impair fundamental human dignity or that would otherwise affect the individual in a comparably serious manner.

Employers must ensure that if there is a particular remuneration differentiation between Employees who are employed in different cities or provinces, that there is proper justification for the differentiation, or they may be at risk of adverse judgements in favour of their Employees.

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1 Act 55 of 1998

2 (C604/2012) [2016] ZALCCT 6