Case: Sun International Limited v SACCAWU obo Ramerafe and others
One must pay employees equal pay for equal work, if the employee alleges discrimination on a specifies ground, such as race or gender, it becomes the duty of the employer to establish on balance of probabilities that discrimination did not take place or it was justified.
Written by: Adriaan Jean Vermaas (B. Com Law, L.L.B, L.L.M); source: https://www.lexisnexis.co.za/
Industrial Relations and Human Resources :: employment equity
Sun International Limited v SACCAWU obo Ramerafe and others
 JOL 41578 (LC)
|Case Number:||JR 1501 / 17|
|Judgment Date:||26 / 02 / 2019|
|Bench:||A van Niekerk J|
Labour and Employment – Employment equity – Right to equal pay
The first respondent, a black female, was employed by the applicant in the position of surveillance auditor. She referred a dispute to the CCMA after discovering that a white male employed after her, in the same position as hers, earned more than her. The second respondent, as arbitrator, was called upon to decide whether the applicant had committed unfair discrimination. He found there to be an unjustifiable, irrational and unfair salary disparity between the first respondent and her male colleague, and ordered the applicant to pay the first respondent compensation. The applicant sought the review of the arbitration award.
Held that the test to be applied was one that entitled the court to intervene only if the commissioner’s decision was one that fell outside of a band of decisions to which a reasonable decision-maker could come on the available material.
The arbitrator’s analysis of the evidence and reference to not entirely relevant authorities displayed a lack of understanding of some of the basic principles that underpin the Employment Equity Act’s regulation of the right to equal pay. Section 11 of the Act provides that if unfair discrimination is alleged on a specified ground listed in section 6(1) (which it was in the present instance), the employer against whom the allegation is made must prove, on a balance of probabilities, that the discrimination did not take place or that any discrimination was rational and not unfair, or is otherwise justifiable. The applicant was thus obliged to discharge the onus to prove the absence of any discrimination and to justify any discrimination found to exist. The arbitrator also failed to distinguish between the various categories of “work of equal value” established by Regulation 4 of the Employment Equity Regulations of 2014. The arbitrator was required to determine whether the work was of equal value (which was admitted in this case), whether there was a difference in remuneration (which was also admitted) and whether the difference constituted unfair discrimination. The applicant had denied any act of unfair discrimination and therefore bore the onus to establish, on a balance of probabilities, that the difference in remuneration between the employees was not based on race and gender, or that it was rational and not unfair, or otherwise justifiable. The applicant explained that it was required to match the first respondent’s male colleague’s existing nett pay to recruit him, and that his higher qualifications and experience attracted a premium. The differential therefore did not point to a lack of rationality, fairness or other ground of justifiability.
The award was reviewed and set aside, and the dispute was remitted for a rehearing before a commissioner other than the second respondent.