Arbitrary ground: [see below for reference to outcome of LAC appeal] Rabkin-Naicker J held that when employees are paid less for the ‘same work’ as other employees in a different location they are discriminated against on the arbitrary ground of ‘geographical location’.  In her judgment this is prohibited by sec 6 of the Employment Equity Act, and the conduct of the employer impairs the dignity of such employees in a manner comparable to the listed grounds and is discriminatory.  This calls into question issues such as the ‘worth’ and ‘weight’ of the actual job, among other factors, that affect our ability to compare the same type of jobs in different locations.  If this judgment stands then it seems that bank managers in small towns will have to be paid the same as the bank managers in big cities.  They may all appear to be doing the same type of work but it is illogical and unreasonable to think of it as being of ‘equal value’.

Duma v Minister of Correctional Services (C604/2012) [2016] ZALCCT 4 (2 February 2016) per Rabkin-Naicker J.

Note: On appeal this judgment was overturned on 23 June 2017 by Davis JA in Minister of Correctional Services v Duma (2017) ILJ 2487 (LAC).  It was held that on the basis of the stated  case, the employee cannot discharge the

‘burden of proof which rests on her, in that the inference that she seeks to draw from the stated case and hence rely upon to justify her claim is not the most readily apparent and acceptable inference from a number of possible inferences that might be drawn as to why a manager in the Western A Cape is employed at a level 8 and a legal manager in another province is at a level 9. Differentiation of workload is as plausible a reason as is geographical location. Hence inferential reasoning alone cannot justify the respondent’s case’.

See some earlier posts: