Equal pay dispute: Comparators with longer service

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

Details of hearing and representation

[1] This is an award in the arbitration between Mr Oscar Msizi and 80 others, the complainants, and Tiger Brands (Pty) Ltd; the respondent. The hearing was conducted under the auspices of the CCMA in Benoni, Ekurhuleni Region on 19 April 2023 and 1 August 2023.

[2] The complainants were represented by Mr Karabo Makaleng, the Union Official. The respondent was represented by Ms Naledi Khumalo, the E.R Manager.

[3] The parties submitted bundles of documents into evidence. The bundles submitted by the Complainants were marked “A1–A5”. The bundle submitted by the respondent was marked “B”.

Background to the dispute

[4] The complainants referred a dispute in terms of section 6(4) of the Employment Equity Act, as amended (“the EEA”) in which they claimed “Equal pay for work of equal value on arbitrary grounds”.

Issues that are common cause

[5] The parties entered into a pre-arbitration conference and submitted the signed minutes thereof (“the Minute”).

[6] The dispute concerns two categories of employees, namely, Drivers and Van Assistants.

[7] Prior to the year 2005, the respondent introduced the Owner-Driver Scheme in the Sales Department which provided employees with the option of becoming Independent Contractors rendering service at the instance of the respondent and submitting invoices for payment.

[8] Drivers who did not opt for participation in the scheme, remained the respondent’s employees.

[9] In 2005, the employees who opted for the Owner-Driver Scheme were reemployed in the Sales Department and started their terms of service in 2005 and paid at an agreed sales rate.

[10] There are currently 204 Van Assistants, and as from 10 May 2023, 202 of them earned R1,751.04 per week as per the Minute. The other two Van Assistants, namely, MP Masha (“Masha”) and DZ Mathunzi (“Mathunzi”), earned above the others.

[11] Masha commenced employment with the respondent on 12 September 1997 and Mathunzi on 17 May 1986. They both did not opt for the Owner-Driver Scheme and their length of service with the respondent was unbroken.

[12] There are currently 148 Drivers, and as from 10 May 2023, 147 of them earned R2,760.75 per week as per the Minute. Mr TM Mbamali (“Mbamali”) is the only Driver who earned above others at R3,239.10 per week as per the Minute from 10 May 2023.

[13] Mbamali commenced employment with the respondent on 8 February 1997. He did not opt for the Owner-Driver Scheme and his length of service with the respondent was unbroken.

[14] The above issues were presented in the form of oral and documentary evidence and the Minute.

[15] Based on the complainants’ earnings as stated above, it is evident that they earn below the threshold set out in section 6(3) of the Basic Condition of Employment Act (“the BCEA”) which became R241,110.59 per annum and translates to R20,093 per month with effect from 1 March 2023.

[16] Section 10(4)(b) of the EEA provides that the referring party must satisfy the CCMA that a reasonable attempt has been made to resolve the dispute. I am satisfied, based on the Minute, and the substantive issues that are common cause, that this provision was met.

[17] As the complainants’ allegation of unfair discrimination falls to be determined in terms of section 6(4), read with section 11(2) of the EEA, I ruled that the complainants had the duty to begin to present evidence.

Issues to be decided

[18] I am required to determine whether differentiation in payment based on tenure and uninterrupted service amounts to unfair discrimination or not?

[19] The complainants submitted that such differentiation amounts to unfair discrimination. The respondent disputed this submission.

[20] If I find that the respondent committed an unfair discrimination as described above, I am required to determine a suitable remedy.

The complainants sought the relief of equalisation of payment between the 202 Van Assistants and Masha and Mathunzi, and 147 Drivers and Mbamali backdated from 28 November 2022.

Survey of evidence and argument

[21] As indicated above, the facts of the dispute are the same in material respects or are common cause, and therefore, the evidence of the parties will not be hereby repeated. What is in dispute is the correct legal principles applicable to the facts.

Analysis of evidence and argument

[22] Section 6 of the EEA provides for “Prohibition of unfair discrimination”, and states as follows in subsection 1:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on any 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 on any other arbitrary ground”. (My emphasis.)

[23] In Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR), case number C687/15 [[2016] 9 BLLR 942 (LC)], the Labour Court also underlined the above portion of section 6(1) of the EEA as I did, and stated in paragraph 8 that:

“The highlighted portion was added by the Amendment Act that came into force on 1 August 2014”.

[24] Section 6(4) of the EEA 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 subsection (1), is unfair discrimination”.

[25] It is common cause, as was the case in the Pioneer case, supra, in paragraph 18:

“that the union did not allege discrimination on any of the grounds listed in section 6(1).

It follows that, as regards the burden of proof, section 11(1) has no application and that section 11(2) is in point.

That subsection provides:

If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that –

(a) The conduct complained of is not rational;
(b) The conduct complained of amounts to discrimination; and
(c) The discrimination is unfair”.

[26] The complainants must prove differentiation on a listed or “other arbitrary” ground.

In paragraph 19, the Labour Court stated as follows in the Pioneer case:

“To establish pay discrimination it is necessary for a complainant to show that:

• • 19.1 the work performed by the complainant is equal or of equal value to that of a more highly remunerated comparator, and
  • 19.2 such difference in pay is based on a prohibited ground of discrimination”.

[27] The complainants in this matter did not establish that the difference in pay is based on a prohibited ground of discrimination.

[28] In paragraph 20, the Labour Court stated that:

“In order to prove that the conduct complained of ‘amounts to discrimination’ in terms of section 11(2)(b), the complainant must

• • identify the listed or unlisted arbitrary ground of discrimination relied upon;
  • establish that that ground is an ‘other arbitrary ground’; and
  • prove that that ground is the reason for the disparate treatment complained of”.

[29] In Ntai and others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) paragraph 73 [2001] 2 BLLR 186 (LC), the Court stated that:

“Litigants who bring discrimination cases to the Labour Court and simply allege that there was ‘discrimination’ on some or other ‘arbitrary’ ground, without identifying such ground, would be well advised to take note that the mere ‘arbitrary’ actions of an employer do not, as such, amount to ‘discrimination’ within the accepted legal definition of the concept”.

[30] In paragraph 17, the Labour Court stated in the Ntai case, supra, that:

“It is only when such differentiation is based on or linked to an unacceptable ground that it becomes discrimination within its pejorative meaning”.

[31] In this arbitration, as in the Pioneer case, supra, the complainants failed to

“identify the unlisted arbitrary ground relied upon, and to establish that that ground is an arbitrary ground and prove that that ground is the reason for the disparate treatment complained of”.

It is evident

“that the mere fact that there was a difference in salary, without that difference being linked to a specific ground, did not amount to discrimination”.

[32] When the complainants referred the dispute, Masha’s length of service was 24 years and 2 months, and Mathunzi was 36 years and 6 months in employment as Van Assistants.

Mr Mbamali’s length of service was 25 years and 9 months at the time of the referral of the dispute.

[33] None of the complainants worked for lengths of period equal to or more than the periods worked by Masha, Mathunzi and Mbamali.

The complainants who testified in this arbitration on behalf of other complainants commenced employment with the respondent in 2016 and 2017 respectively.

All other complainants were employed during different periods from the year 2005.

[34] In the Pioneer case, the Court stated that:

“The Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value specifically states that it is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following factors: ‘the individuals’ respective seniority or length of service’.” (My emphasis).

[35] The respondent in this arbitration submitted undisputed satisfactory evidence to rebut the allegation of unfair discrimination based on a claim of equal pay for work of equal value.

[36] In the Pioneer case, the Court stated as follows in paragraph 75:

“Equal pay for ‘work of equal value’ is a different concept from equal pay for ‘the same . . . work’.

‘Work of equal value’ raises issues of considerable complexity which are not regulated in the EEA itself.

And the Code of Good Practice, which provides ‘practical guidance to employers and employees on how to apply the principle of equal pay / work of equal value in their workplaces’, specifically recognises length of service as a factor justifying differentiation in pay”. (My emphasis)

[37] Based on the above analysis, I find on a balance of probabilities that the differentiation complained of

• • was not irrational,
  • was not based on any arbitrary unlisted ground, and
  • was not unfair.
  • Accordingly, I hereby dismiss the applicants’ referral.

Award

[38] For the reasons set out above, I accordingly dismiss the complainants’ claim.

[39] CCMA Case Management is directed to close the file in respect of this matter.

 

Flynote:

Referral in terms of section 6(4) of the EEA
Discrimination – Unequal pay – Employees citing comparators with longer service to justify claim of unequal pay for equal work – Length of service justifiable basis for higher wage – Discrimination not proved.

Summary: