The issue of unfair discrimination stems far back in South Africa and in order to understand the current legislative framework, it is necessary to understand the racial inequalities in the workforce that people of colour have been subjected to. History provides context and context provides understanding of what people of colour have endured over the years. During apartheid, there were no law that governed pay discrimination and the laws of apartheid had no regard for people of colour. The enactment of the Wage Act 5 of 1957 was the first time the principle of equal pay for equal work or work of equal value was addressed in South Africa even although there remained serious discriminatory laws.  The current legislative framework governing pay discrimination has been now developed extensively, however there still remain a number of South African employees who endure pay discrimination. Equal pay remains an area of employment law that has proven complex and difficult to tackle therefore in need of careful development to ensure equality in the workplace.

Unfair discrimination is deeply rooted in South African history. Du Toit in his article ‘The Evolution of the Concept of Unfair Discrimination in South Africa Labour Law, provides that under the apartheid regime unfair discrimination against workers on grounds of race was not only permitted but it was legally enforced. The evolution of the prohibition of unfair discrimination was a product of unfair labour practice developed by the Industrial Courts. The first reported case that dealt with unfair discrimination was the case of Road van Mynvakbonde v Minister van Mannekrag and ‘n ander (1983) 4 ILJ 202 (T), 208, whereby it claimed that the less favourable conditions of service enjoyed by union members compared to officials amounted to discrimination.

The war against unfair discrimination was won through small victories over the years. It was evolved on a case-by-case basis with the right not to be unfairly discriminated against being part of the right to fair labour practice. The case of Minister of Posts and Telegraphs v Rasoo (1934) AD 167, 186, defined differentiating as to distinguish from another. The identification of the notion of differentiation in contrast to discrimination, meant that without the element of inequality differentiation could not amount to discrimination. In order to establish discrimination, inequality had to be in existence as held in the case of Prinsloo v Van De Linde (1997) 6 BCLR 759 (CC).

Unfair discrimination made its appearance also in the codification of unfair labour practice contained in the Labour Relations Act 83 of 1988 amendments to the previous Labour Relations Act 28 of 1956 which included unfair discrimination by any employer against an employee based on race. Discrimination in terms of race was held to be unfair labour practice in the case of SACWU v Sentrachem Ltd (1988) 9 ILJ 410 (IC).  

The end of apartheid resulted in an attempt to eradicate all forms of inequality, inclusive but not limited to, gender and racial discrimination. The enactment of the interim constitution in 1993 made provision for the prohibition of unfair discrimination in section 8. The interim constitution allowed the industrial court to continue to combat discrimination in the workplace by means of unfair labour practice but added prohibited grounds of discrimination to which the court had to treat as unfair labour practice. In the Collins v Volkskas Bank 1994, the court was faced with the constructive dismissal of a woman who had been denied maternity leave. The court held that this had amounted to indirect discrimination on the grounds of sex.

The coming into effect of the final constitution in 1996 had equality as one of its core values and closely linked to equality was the right to human dignity that was to be strictly upheld. It was through the constitution that discrimination was said to impair the fundamental dignity of human beings.  In the Hoffmann v SA Airways(2000) 21 ILJ 2357 (CC); (2000) 12 BLLR 1365 (CC), the court had to determine whether there had been discrimination as the employer had refused to employ the employee on the basis of his HIV status. HIV was not a listed ground in section 9 of the constitution however it was necessary for the court to establish whether HIV fell within the reach of section 9(3). The court held that the basis of the prohibition of unfair discrimination is the recognition that all human beings have the right to dignity and that dignity is impaired when they are unfairly discriminated against. The final constitution brought a significant change in South African employment law which further required there be enacted national legislation to place more emphasis on the prohibition of unfair discrimination. The result was the enactment of the employment equity act of 1998 (1998 EEA) which contained provisions prohibiting unfair discrimination.

The 1998 EEA prohibits unfair discrimination however fails to provide a set definition of the term discrimination. The prohibition of unfair discrimination by the 1998 EEA derives the right to equal protection contained in the constitution and more specifically from the notion that national legislation must be enacted to prohibit unfair discrimination. The 1998 EEA is therefore the national legislation giving effect to the fundamental constitutional right.

The EEA does deal with equal remuneration claims indirectly under section 6(1) read with the definition of an employment policy or practice in section 1. In case of claims relating to unequal pay for equal work, the claimant could bring such a claim in terms of section 6(1) of 1998 EEA, which prohibits unfair discrimination on a number of grounds. In terms of section 6(1) of the 1998 EEA, no employer could discriminate against, whether directly or indirectly, in any employment policy or practice on the grounds of race, gender, sex or any other arbitrary ground. Even although the provision of section 6(1) did not explicitly regulate equality with reference to remuneration, however, the case of Mangena v Fila South Africa (Pty) Ltd (2009) 12 BLLR 1224 (LC) found that the provision was broad enough to include the issue of equal pay. Discrimination for equal work was not prohibited unless the differences was based on the listed or unlisted grounds in terms of section 6(1).

The amendments to the 1998 EEA were as a result of the international labour organisations’ (ILO) criticism for South Africa’s failure to include specific equal pay provisions in its legislation. The Employment Equity Amendment Act of 2013 (2013 EEA), amended the 1998 EEA by the introduction of sections 6(4) and 6(5). Section 6(4) of the 2013 EEA prohibits unfair discrimination in terms and conditions of employment between employees performing the same or similar work. The provision provides for three causes of action in respect of equal pay namely, equal pay for the same work, equal pay for substantially the same work, and equal pay for work of same value.

Section 6(4) provides that 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 section 6(1), is unfair discrimination. The failure to describe the differential ground in terms of section 6(1) results is the differential not being unfair discrimination.  The general principle is that different remuneration is not unfair and does not automatically result in discrimination, unless the differentiation is as a result of the ground in section 6(1). This therefore means that where one finds that their colleague earns more than them, the differentiation will only amount to unfair discrimination where it is based on one or more of the listed grounds.

In the case of Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd 1997, where the court found that the black employees who were paid weekly were being discriminated against as the white employees were being paid monthly. The court held that discrimination could have been justified if the object was legitimate and means rational. In the case of Mia v Minister of Justice (2002) 23 ILJ 884 (LAC); (2002) 1 BLLR 1 (LAC), para 2, the court found that to determine whether there is discrimination, it must be determined whether there was differentiation and if so, was it discriminating and if so, was it unfair.  In the case of Louw v Golden Arrow Bus services (2001) 21 ILJ 188 LC, the court held that it is not unfair labour practice to pay different rates for equal work however it is unfair labour practice to pay different wages for equal work if the reason is indirect or direct discrimination on the arbitrary grounds such as race. The court found that the applicant had failed to prove that the two jobs on an objective evaluation were of equal value however stated that this did not mean there was no racial discrimination but merely that it had not been proven.

In the case of Mangena v Fila South Africa (Pty) Ltd 2009, Shabalala (a black male employee) alleged that he was paid less than McMullin (a female white co-worker) based on race even although they were doing the same work. The court found there was no factual foundation set to the similarities of the work done by Shabalala and McMullin. The court found that Shabalala had failed to establish a prima facie case.

In SA Chemical Workers Union v Sentrachem Ltd 1988 9 ILJ 410 IC, one of the unfair labour practices alleged by the applicants was that the respondent discriminated  between its black and white employees by paying its black employees less  than  their  white  counterparts  who  were  employed  on  the  same  grade  or  engaged in the same work. The Industrial Court held that there is no doubt that wage discrimination based on race or any difference other than skills and experience was   an   unfair   labour   practice.   The   respondent acknowledged the pay discrimination as alleged  and  committed  itself  to  remove  it. As a result thereof, the Industrial Court ordered the employer to remove the pay discrimination based on race within  a  period  of  six  months. This case makes it clear that skills and experience are objective  and fair factors which would justify pay differentiation and further where there is discrimination, employers will be order to remove the pay discrimination.

In Ntai & Others v SA Breweries Ltd 2001 22 ILJ 214 LC, the applicants, black people, alleged that their employer committed unfair discrimination based on race in that it paid them a lower salary than their white counterparts whilst they all were engaged in the same work or work of equal value. The applicants sought an order that their employer pay them a salary equal to that of their white counterparts. The respondent admitted that there was a difference in the salaries but denied that the cause of same was based on race. The respondent attributed the difference in pay to a series of performance based pay increments, the greater experience of the comparators and their seniority. The Labour Court accepted that the applicants had made out a prima facie case but noted that they still bore the overall onus of proving that the difference in pay was based on race. It found that the applicants had failed to prove on a balance of probabilities that the reason for the different salaries was based on race. The application was consequently dismissed.

A complainant will not be able to succeed in a claim for equal pay if it cannot be proven that there is an actual discrepancy between the complainant’s wages and that of the chosen comparator. The idea of equal pay for performing the same work implies that employees with the same qualifications and experience should be remunerated equally when performing exactly indistinguishable work. It has been said that negligible differences does not automatically make the jobs being compared dissimilar. The principle regarding the onus of proof in civil cases is that if one person claims something from another in a court of law, then he has to satisfy  the court that he is entitled to it. Section 11 of the EEA clearly places a significant burden on the  complainant to prove his or her case. The claimant is required to only establish a prima facie case of  discrimination, calling upon the respondent employer to then justify its actions. However, a mere allegation of discrimination will not suffice to establish a prima facie case. If the complainant establishes a prima facie case of discrimination regarding pay on the basis of race, section 11 of the EEA gives the employer two statutory defences, namely that the alleged act of discrimination did not take place and or did take place but is not unfair or justified.

It cannot be denied that the South African legislative framework governing unfair discrimination in equal pay has been well-developed, however, is insufficient to ensure success for unequal pay claimants as there still remain the onus of proof on the part of claimants. In the case of unequal pay claims, the onus of proof does make it difficult in the likelihood of success, especially having to prove unfair discrimination that is indirect, the recommendation is to adopt the appointment of an independent expert that will assist the courts in not only fact finding but also determination of whether work is the same or not.

The law relating to equal pay claims is rather complex and not easily understood. It is only through clear provisions relating to equal pay that claimants will be able to benefit from the remedy provided by the provision. It is therefore important for concepts such as the same or substantially the same work, work of equal value and unfair discrimination to be clearly defined in the EEA. The correct definitions are vital in order to provide guidance to claimants on how to prove that their claim. The EEA whilst it has improved and developed still requires further clarity to ensure equal pay claims do not only make it to court but there is a likelihood of success. It seems the amendments to the EEA whilst served useful but were done merely to be in line with the ILO and without careful consideration. The courts may use international and foreign law as a guide for definitions however the legislature is to develop the EEA to serve useful to South Africa’s already complex and racial divided society and lastly, the EEA is to make provisions that allow courts to utilise the services of independent experts that will serve as the amicus curiae providing assistance and relieving the claimants from the burden of proof.

Written by Sinethemba Cele, Legal Practitioner at HSG Attorneys Inc and pursuing a Masters in Labour Law.