EQUAL PAY FOR WORK OF EQUAL VALUE. Presented by Ronel de Wet 16 August 2018

Transcription

1 EQUAL PAY FOR WORK OF EQUAL VALUE Presented by Ronel de Wet 16 August 2018

2 LABOUR ELITE OFFERS THE FOLLWOING Private Agency We have been accredited with the CCMA to fulfill dispute resolution functions. We specialize in S188A (inquiry by an Arbitrator) and in addition can assist with any Conciliation and Arbitration Training and Relationship Building Agency We have developed courses based on SETA Unit Standards and can also develop any course that you may require Contact us on

3 Presented by Ronel de Wet 16 August 2018

4 1 COPY RIGHT Unless otherwise indicated, copyright of this material vests in Labour Elite. No part of this material may be reproduced, modified, or adapted in any form or by any means without the written permission of the Directors of Labour Elite.

5 2 OUTLAY OF THE PRESENTATION The Concept of Discrimination within the legal context The Principle of Equal Pay For Work Of Equal Value Grounds for discrimination Key learnings through the cases Requirements in referring disputes to the CCMA Onus of proof Consequences of unfair discrimination

6 3 THE LEGAL CONTEXT IN SOUTH AFRICA

7 4 THE LEGAL CONTEXT IN SOUTH AFRICA South Africa ratified ILO Equal Remuneration Convention 100 International Conventions and declarations serve as primary sources of the right to equality in the workplace The right to equality is established ito section 9 of the Constitution EEA was promulgated to give effect to the Constitution Purpose of the EEA

8 5 POSITIVE DUTY ON EMPLOYERS According to section 5:- "Every employer must take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any employment policy or practice."

9 6 EMPLOYMENT POLICY OR PRACTICE? Recruitment procedures, advertising and selection criteria Appointments and the appointment process Job classification and grading Remuneration, employment benefits and terms and conditions of employment Job assignments Working environment and facilities

10 7 EMPLOYMENT POLICY OR PRACTICE? Training and development Performance evaluation systems Promotion, transfer, demotion, disciplinary measures other than dismissal Dismissal

11 8 PRINCIPLE OF EQUAL PAY FOR WORK OF EQUAL VALUE

12 PRINCIPLE OF EQUAL PAY FOR WORK OF EQUAL VALUE 9 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. (Section 6(4))

13 SAME (Identical or Interchangeable) EQUAL PAY SUBSTANTIALLY THE SAME (Sufficiently similar objective assessment) EQUAL VALUE (Different posts but equal value: Regulations) 10 DETERMINING EQUAL WORK?

14 11 PERFORMING WORK OF EQUAL VALUE Is the work of equal value? Is there a gap in remuneration? Is there justification for such gap?

15 12 GROUNDS FOR DISCRIMINATION

16 13 GROUNDS FOR DISCRIMINATION No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on 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 any other arbitrary ground

17 14 THE EFFECT OF ARBITRARY GROUND Prior to the amendments, where employees sought to establish unfair discrimination on an unlisted ground, they were required to illustrate that the basis upon which they allege unfair discrimination is analogous to a listed ground

18 15 DEBATE ABOUT ARBITRARY GROUND First school of thought: According to Du Toit (2014) 35 ILJ the words arbitrary grounds cannot only reiterate the existence of unlisted grounds. One must broaden the scope from grounds that undermine human dignity to include grounds that are merely irrational.

19 16 First school of thought: DEBATE ABOUT ARBITRARY GROUND The reintroduction of the prohibition of discrimination on arbitrary grounds cannot be understood as merely reiterating the existence of unlisted grounds, which would render it redundant. To avoid redundancy, arbitrary must add something to the meaning of unfair discrimination. Giving it the meaning ascribed to it in Kadiaka that is, capricious or for no good reason would broaden the scope of the prohibition of discrimination from grounds that undermine human dignity to include grounds that are merely irrational without confining it to the latter.

20 17 DEBATE WHAT IS ARBITRARY GROUND Second school of thought: Must differentiate between arbitrariness and arbitrary ground Test is same as for unlisted ground

21 18 DEBATE WHAT IS ARBITRARY GROUND Second school of thought: EEA does not exist in isolation but must be interpreted in compliance with and to give effect to the Constitution and international law obligations, in particular the ILO Convention (111). Unescapable clarity is test for discrimination as set out in Harksen v Lane remain determinative.

22 19 KEY LEARNINGS THROUGH THE CASES

23 20 PIONEER FOODS In Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and Others [2016] 9 BLLR 942 (LC) Background: Pending the amendments to section 198A of the LRA, the Union and the employer entered into a collective agreement. According to the agreement TES employees could decide whether to work for the employer (Pioneer) but at 80% of the rate paid to longer serving employees who performed the same work.

24 21 PIONEER FOODS The Court noted that in order to establish pay discrimination, it is necessary for a COMPLAINANT to show that: The work performed by the complainant is equal or of equal value to that of a more highly remunerated comparator; and Such difference in pay is based on a prohibited ground of discrimination

25 22 PIONEER FOODS The first hurdle was to establish the ground on which the alleged discrimination was based. The claim was based on an arbitrary ground and as a result the onus was on WAR to prove such claim. At the CCMA, WAR conceded that they did not know on which unlisted arbitrary ground they relied. It was only in their heads of argument in Court that WAR alleged, that the grounds for the differentiation treatment was length of service.

26 23 PIONEER FOODS Applied the test articulated in Harksen v Lane. Where differentiation is not on a specified ground: Will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them in a comparably serious manner. Court accepted arbitrary replaced unlisted or analogous

27 24 PIONEER FOODS Held: There was in fact a rational connection between the difference in remuneration and the length of service, i.e. to reward long service and loyalty of existing employees. The differential treatment as a result of length of service DOES NOT impair fundamental human dignity or affect them adversely in a comparably serious manner.

28 25 PIONEER FOODS Held: There is nothing arbitrary or irrational about uniform application of a rule which sets different pay levels for employees with different lengths of service. This will be applicable even if the newly recruited employee has the same level of experience and expertise as the employer s existing long-service employees.

29 26 NDUDULA & OTHERS V METRORAIL Ndudula and Others v Metrorail PRASA (Western Cape) [2017] 7 BLLR 706 (LC); (2017) 38 ILJ 2565 (LC) Background: The Applicants were appointed as Section Managers. With effect 1 January 2014 two more Section Managers promoted and appointed. The applicants were aggrieved because newly appointed Section Managers placed on higher salary or scale of remuneration. Grievance and thereafter on 5 August 2015 referral to CCMA.

30 27 NDUDULA & OTHERS V METRORAIL On 17 August 2015 newly appointed managers informed of error in salary or scale of remuneration, and that correction be made - effective September Agreed however no need to repay overpayment due to previous precedent set. Applicants: Unfair discrimination on unknown reasons. Prayed to be appointed same terms and conditions as newly appointed managers retrospective from January 2014, later changed to compensation only.

31 28 NDUDULA & OTHERS V METRORAIL Respondent: Admitted to appointment of two Section Managers at a higher salary scale, but denied amounts to unfair discrimination. Defence was: mistake had been made in the salary scale at which the two section managers were appointed. Common cause: Two Section Managers appointed by mistake on the higher scale 20 months later - effective 1 September 2015 remuneration adjusted onwards

32 29 NDUDULA & OTHERS V METRORAIL Applicant s claim: Reliance placed on section 6 of EEA, therefore not necessary to specify a specific ground as the conduct of the Respondent inherently constituted arbitrariness. Basically legislature introduced third ground for discrimination Alternatively: have in fact identified and pleaded the ground for discrimination and ground is that conduct of Respondent was arbitrary and therefore constitutes unfair discrimination.

33 Amendment - Just clarifying legal position prior to amendment. 30 Respondent contended: NDUDULA & OTHERS V METRORAIL Section 6(4) provides only differentiation based directly or indirectly one or more grounds listed in section 6(1) is considered to be unfair discrimination MUST be linked to a listed or analogous ground and Applicants are required to plead and identify such ground Arbitrary in itself is not a ground

34 31 Court held: NDUDULA & OTHERS V METRORAIL Principles of interpretation: Ordinary meaning and context Formulation of Section 6(1): distinction between listed and arbitrary: points to legislature dealing with only two grounds All other grounds: analogous to listed and thus test in Harksen applies Previous judgments all accepted grounds have potential to demean persons in their inherent humanity and dignity or affect them in a comparably similar manner This means test for discrimination is same: listed and unlisted ground

35 32 NDUDULA & OTHERS V METRORAIL Court further reasoned: Explanatory Memorandum: To bring Section 6(1) in line with Section 187(1)(f) of LRA... if the reason for the dismissal is (f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to If legislature intended to introduce third ground: section 11 would have included the third ground Therefore arbitrary replaced unlisted grounds

36 33 NDUDULA & OTHERS V METRORAIL Court held : Applicants failed to plead or rely on listed or any other arbitrary ground Is difficult to understand how an error as such that is subsequently corrected or rectified, and thereby extinguished, can constitute such a ground Case dismissed and no order as to costs

37 34 CHITSINDE V SOL PLAATJE Chitsinde v Sol Plaatje University (C482/15) [2018] ZALCJHB 216 (handed down on 29 June 2018) Background: Chitsinde applied for a job at Sol Plaatje University. Being unsuccessful, he alleges refusal to appoint amounted to unfair discrimination on an arbitrary ground. Ground being: he was only Applicant required write aptitude test. Respondent argued upon being found non-appointable, decided to give him another chance to show suitability by way of a written submission.

38 35 Court accepted : School of thought of du Toit Court held: CHITSINDE V SOL PLAATJE Applicant was treated differently to other job applicants. But was to his benefit, was given a second opportunity to convince interviewing panel was appointable; others were not. Although amounting to differentiation, not amount to discrimination. Applicant has not proven discrimination

39 36 FOR DISCUSSION SOL PLAATJE S If intention of legislature to introduce third ground: What is test to be applied? Where is onus of proof? Apparent contradiction? Applicant argued non-appointment infringed his dignity. Court accepted link between productive work and dignity, but then rejected argument by distinguishing the authority relied by applicant stating no right to be appointed. If arbitrariness is independent of dignity: does it mean employment simply is so important that there should be a general right to rationality in the employment sphere?

40 Background: Duma is employed by the Department in Western Cape as a Senior Correctional Officer: Manager Legal Services. She claims discrimination on the ground of geographical location of her post. 37 MIN OF CORRECTIONAL SERVICES V DUMA Minister of Correctional Services and Others v Duma (CA10/2016) [2017] ZALAC 78 (handed down on 23 June 2017) The applicant claimed being paid less for the same work as comparators in a different geographical location and that amounts to discrimination.

41 38 MINISTER OF CORRECTIONAL SERVICES Labour Court accepted Duma met the onus of proving that she had been unfairly discriminated against in an arbitrary manner on a ground that impacted on her dignity Respondent failed to show it was necessary to distinguish between the comparable positions in the different provinces, / there was a purpose for differential treatment; any distinction based solely on the area of the country in which they work is, unfair given our history.

42 39 MINISTER OF CORRECTIONAL SERVICES In the LAC: Duma had to show, at the very least: the nature and volume of work which she performed in her position was similar to that of legal officers, holding the same position in the four provinces who occupied a higher grade level; thus the ground of differentiation was indeed geographical location employer s conduct was unfair and amounted to differentiation on geographical ground and the practice was irrational AND impaired her dignity

43 40 MINISTER OF CORRECTIONAL SERVICES Duma s argument: She was treated arbitrarily on ground of geographical location that impacted significantly on her dignity to use a person s geographical location as the basis for a pay discrimination was prejudicial, inherently arbitrary and reproduced a sad history of this country which had distinguished between people based on geographical location Employer placed nothing before the court to gainsay this differentiation had not prejudiced her financially over a number of years.

44 41 Employer s contention: MINISTER OF CORRECTIONAL SERVICES Effect of Resolution 1 of 2007, which provided for implementation of OSD for qualified legal professionals with effect from 1 July 2007, cannot be interpreted to have transformed the appointment of Duma from level 8 to 10 or even 9. There were at least four other provinces, Limpopo, Mpumalanga, North West and KwaZulu, the position is characterised as level 9 and cannot be automatically concluded, that it was unfair for Duma to be employed at level 8.

45 42 Employer s contention: MINISTER OF CORRECTIONAL SERVICES Might be correct that Legal Services Managers would perform the same kind of work no matter where they are, the volume of work may differ from region to region. That geographical location could serve as a basis to categorise levels differently by taking into consideration: size of the correctional facility, number of inmates, costs of living in the area concerned; and attractiveness of the area itself.

46 43 MINISTER OF CORRECTIONAL SERVICES LAC referred to Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC) Discrimination on a particular ground means that the ground is the reason for the disparate treatment complained of. The mere existence of disparate treatment of people, for example, different races is not discrimination on the ground of race unless the difference in race is the reason for the disparate treatment. Put differently, for the applicant to prove that the difference in salaries constitutes direct discrimination, he must prove that his salary is less than Mr Beneke s salary because of his race

47 44 LAC stipulated: MINISTER OF CORRECTIONAL SERVICES The Applicant must establish tasks performed by the comparator and are of equal value, having regard to the required degree of skill, physical and mental effort, responsibility and other factors. OSD clearly provided for scenario where Legal Officer performs certain tasks which require a particular amount of time, another officer occupying the same position who has a more demanding set of work pressures may be shown justifiably to be paid more.

48 45 MINISTER OF CORRECTIONAL SERVICES LAC held: no concrete evidence as to the nature of the work undertaken in these provinces and why in other provinces they are not categorised at level 9 employees. Duma was required to establish a link between the alleged unfair differentiation; that is a difference in remuneration for what she considered to be the same work or work or work of equal value, and her geographical location. Appeal upheld with costs

49 46 MINISTER OF CORRECTIONAL SERVICES Learnings from the judgment : Was there adequate factual foundation to sustain the claim that Duma was on a salary notch which was unjustified because of her geographical location? It is this factual foundation which permits a court to examine whether the complainant suffered an assault to her dignity and whether her rights or interests have been unfairly affected.

50 47 FAMOUS BRAND MANAGEMENT COMPANY Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR738/16) [2016] ZALCJHB 290 (handed down on 29 July 2016) Court had to decide whether CCMA had jurisdiction to arbitrate equal pay for equal work dispute involving more than one employee. Respondent argued: CCMA does not have jurisdiction to hear matter involving 633 employees as the amendment to EEA only permits an employee to refer the dispute to the CCMA for arbitration and not a number of employees.

51 48 FAMOUS BRAND MANAGEMENT COMPANY Section 10 If dispute remains unresolved after Conciliation: Any party may refer to Labour Court; or An employee may refer to CCMA for arbitration if dispute is about sexual harassment; or employee earns less than amount stated in BCEA Any party may refer to arbitration, if all consent.

52 49 FAMOUS BRAND MANAGEMENT COMPANY Further that: employee means singular only and does not allow more than one employee to approach the CCMA for arbitration From preamble of the EEAA, broader policy guidelines of the EEA, the LRA and authorities all suggested the reason behind labour law reforms, to take most of the less important individual disputes out of the courts and entrust them CCMA to deal with such disputes swiftly and relatively informally.

53 50 FAMOUS BRANDS MANAGEMENT COMPANY Commissioner ruled CCMA has jurisdiction Labour Court held the aim of EEAA is to assist lower income employees having their disputes adjudicated in cost effective manner which will protect vulnerable, powerless and exploited employees. Nothing to suggest that more than one employee cannot require CCMA to arbitrate unfair discrimination dispute Section 6(b) of the Interpretation Act states in every law, unless the contrary intention appears, words in the singular include the plural.

54 51 FAMOUS BRAND MANAGEMENT COMPANY The court further held: Just because more than one individual is involved in dispute does not mean that the dispute is more complex even though there may be additional logistical challenges when dealing with a dispute involving many employees. Review was dismissed and the court confirmed that more than one employee can refer an unfair discrimination dispute the CCMA for arbitration.

55 52 SAMWU V NELSON MANDELA South African Municipal Workers Union and Another v Nelson Mandela Bay Municipality (2016) 37 ILJ 1203 (LC) Court had to decide whether or not Respondent, in failing to remunerate the Applicant on the same level as her fellow male Assistant Directors (grade 16), amounts to unfair discrimination based on gender. Background: Applicant successfully applied for the post of Assistant Director: Planning and Co-ordination in the Human Settlement Directorate at grade 15. She was the only female Assistant Director (out of 5).

56 53 SAMWU V NELSON MANDELA The Applicant complaint: she was remunerated at a lower salary notch than specifically two men appointed at the same time she was. One of them was on grade 16 and remunerated at that same grade while she was on grade 15. The Respondent blamed administrative chaos for the differences and argued the two males appointed at the same time were existing employees and this also justified the difference in pay

57 54 SAMWU V NELSON MANDELA In explaining the position further Respondent submitted: First comparator s post was incorrectly graded at level 16 and that the process to correct the error was underway. Second and third comparators were previously employed by the Respondent whereas the Applicant was an external candidate. After the appointment they complained that their remuneration was less than what they previously earned and requested an adjustment.

58 55 SAMWU V NELSON MANDELA The court accepted: There are other reasonable inferences that could be drawn from the facts, including the administrative chaos, which is gender neutral, which could be attributed to the disparity. On the whole it cannot reasonably be inferred that the differentiation in remuneration was on the basis of gender or sex. That causal nexus is absent in this case, and therefore the existence of discrimination as contemplated in section 6 of the EEA was not established.

59 56 SACCAWU v WOOLWORTHS (PTY) LTD WHAT TO DO IF PAY DIFFERENTIALS ARE DISCOVERED? SACCAWU and Others v Woolworths (Pty) Ltd (J3159/12, JS1177/12) [2016] ZALCJHB 126 (handed down on 5 March 2016) The court had to decide whether it is competent for an employer to seek to address unfair pay differentiation through an operational requirements process and thereby circumventing its obligation under Chapter III of the EEA

60 57 SACCAWU v WOOLWORTHS (PTY) LTD Background: Respondent employs both full-time and flexi-time employees. After grading exercise, sought to convert the remaining full-timers to flexitimers in order to standardised terms and conditions of employment. Respondent contended that conversion was premised on three operational requirements, flexibility, cost efficiency, and equality. Those employees that did not voluntary accept alternatives were dismissed.

61 58 SACCAWU v WOOLWORTHS (PTY) LTD The court noted retrenchment is a legitimate exercise of managerial authority for the purpose of attaining a commercially acceptable objective. Applicants accepted that there was a need for Respondent to adapt the full-timers contracts in line with trading patterns and trends. They accepted the conversion on condition, their wages and benefits remain the same. Respondent argued downgrading was also required in order to address the wage anomalies that gave rise to the concerns about equality.

62 59 SACCAWU v WOOLWORTHS (PTY) LTD Court held: Respondent was entitled to address issues of inequity as result of implementing flexitime contracts. However inequality could have been easily justified in terms of Regulation 7(1)(a) since full-timers longer service than flexi-timers. Alternatively, Regulation 7(1)(d) could have been a perfect justification as the full-timers had to be demoted, retaining their salaries. It would therefore be unfair to dismiss long serving employees when there were alternatives in a form of natural attrition and/or a wage freeze for full-timers

63 60 CO-OPERATIVE WORKER ASSOCIATION V PETROLEUM Co-operative Worker Association & another v Petroleum Oil & Gas Co-operative of SA & others [2007] 1 BLLR 55 (LC): Collective agreement: actual cost of the employees medical aid contributions would be consolidated into the employees total remuneration package, and these employees could then choose how they wished to spend that portion of their remuneration. Employees with dependent spouses or children thus benefited significantly more than employees without dependants

64 61 CO-OPERATIVE WORKER ASSOCIATION V PETROLEUM Court noted: United Nations Universal Declaration of Human Rights acknowledges right to found a family and right to equal pay for equal work. The Act recognises employees with dependants need additional protection to place them on an equal footing with those without. Further held: any attempt to deprive employees of negotiated benefits would not only be unfair, but also unlawful and run counter to the principles of fair collective bargaining.

65 62 CO-OPERATIVE WORKER ASSOCIATION V PETROLEUM Responsibility for protecting employees with family responsibilities cannot rest on the State alone. Employers was shoulder some of that responsibility. This is not only endorsed, but encouraged by international law. Employees with dependants were paid additional remuneration not because they were favoured, but to avoid them being disadvantaged. Moreover, the differentiation did not affect the dignity of employees without dependants.

66 63 CO-OPERATIVE WORKER ASSOCIATION V PETROLEUM The Court held further Any attempt to deprive employees of negotiated benefits would not only be unfair, but also unlawful and run counter to the principles of fair collective bargaining

67 64 NEHAWU OBO MEMBERS V SARS Background: SARS employs Contact Centre Agents in its Contact Centers to assist taxpayers with queries and information. Post Levels of staff at these Contact Centers are 3B, 4A entry, 4A mid, 4B entry and 4B mid. Applicants maintains that the work performed by 3B and 4A entry is of the same value and that the employees on 3B should be paid the same salary as those on 4A.

68 65 NEHAWU OBO MEMBERS V SARS Employees with no prior experience / qualification start on Post Level 3B. If successfully complete training course on Income Tax have to handle calls from the public. After a year, may write an exam, if pass and yearly assessments promoted to 4A entry. Then deemed qualified on one tax type. Once learnt a second tax type, will write a test, if pass, promoted to 4A. A further tax type will be promoted to 4B entry. The writing of tests is part of what the Respondent Capability Framework. Promotions are based on assessments done during the year as well as the Capability Framework test.

69 68 NEHAWU OBO MEMBERS V SARS Employees argued: 3B and 4C doing the same work Discrimination was claimed on arbitrary ground Was held: Not same, substantially the same or work of equal value No evidence of any unfair discrimination Applicants own their own refusal to write the test, and therefore the cause of them earning less than their colleagues No evidence that the test should be dispensed with and that employees should be automatically promoted.

70 69 MBANA V SHEPSTONE AND WYLIE The dispute: Black female claimed unfair discrimination on basis of race, social origin, alternatively arbitrary ground. Background: Respondent offered a bursary to applicant to study LLB, and undertook to employ her after successful completion, envisaged by end of Middle 2008 she informed the respondent that she would only complete her degree in 2009, where after respondent indicated could only take up employment in 2010

71 70 MBANA V SHEPSTONE AND WYLIE In January 2011, the Respondent employed two candidate attorneys: one black male and one white female, whilst their LLB degrees have not yet been completed. Dissatisfied, Mbana referred the matter to the CCMA, and thereafter LC. Labour Court held: There was no discrimination, and even if it did amount to discrimination, it was justified. Leave to appeal: Was refused by LC, LAC and SCA. Applicant then approached CC.

72 71 MBANA V SHEPSTONE AND WYLIE Constitutional Court: Accepted that the dispute raised constitutional issue/s. Although the Court did not expressly deal with concept of arbitrary, it reasoned that the applicant failed to demonstrate how the alleged unfair discrimination was based on arbitrary ground. She had not shown that the Respondent s recruitment policy was irrational, it amounted to discrimination or that it was unfair.

73 72 MBANA V SHEPSTONE AND WYLIE Explanation by employer: Constitutes exceptional circumstances to justify deviation from policy and did not amount to unfair discrimination. Held: Claim lost traction as comparator was of same race. Further: Defenses set out in section 6(2) is not only defenses open to employer. Business needs of employer justification.

74 Proven facts must show that the reason for the differentiation is not as a result of any one or more of the grounds listed Comparing individuals actually performing the work with reference to: seniority / length of service / qualifications / ability / competence / potential performance / quality of work / quantity of work performance evaluation / red-circling / demoted without reduction in pay fixing salary till all reach level / temporary position for purpose of training / gaining experience / shortage of relevant skill / market value /any other relevant factor 73 JUSTIFYING FACTORS

75 74 INTENT V IMPACT Must intent to discriminate be proven? Strict liability is created: no requirement to prove intent Unfair discrimination claims are not a breach of contract which requires intention or negligence Although discrimination might be accompanied by intention, negligence or motive not a requirement (Louw v Golden Arrow Bus Services)

76 75 ABILITY TO BARGAIN Can the employer raise the argument that one / more employee/s are paid differently because they asked for more, or vise versa? Approach with caution: Where discrimination is established, must show justification: If not linked to scarcity of skill or market value of particular job classification, potentially risky!!

77 staring at you till we are remunerated equally This is our Chief Negotiator Officer, Old Pete and he will be staring at you until you pay us the same 76 ON A LIGHTER NOTE

78 77 REQUIREMENTS IN REFERING A DISPUTE

79 Promulgated 1 August DISPUTE RESOLUTION PROCESS Excludes dismissal but includes Job Applicants Within 6 months Reasonable attempt to resolve the dispute Copy must be served on other party

80 79 On listed ground: Employer must prove: ONUS OF PROOF On arbitrary ground: Complainant must prove: did not take place; or differentiation is rational, not unfair or otherwise justifiable conduct is not rational; amounts to discrimination; and discrimination is unfair.

81 80 WHEN CONCILIATION FAILED Sexual harassment Any other dispute Any other dispute Irrespective of income CCMA Labour Court Under the threshold CCMA Labour Court Threshold and more Labour Court

82 81 PROCESS AFTER ARBITRATION Award Sexual harassment / under threshold 14 days from date of award Labour Court Appeal Appeal Appeal Court

83 Compensation Flat amount Injury: dignity No cap Damages Threshold Loss Future loss Order Appropriate order to eliminate Appropriate remedy Instatement 82 CONSEQUENCES OF UNFAIR DISCRIMINATION

84 83 THE END Please no more!!! Thank you