"It seems to me that despite the advent of our democracy and the adoption of our progressive Constitution, now more than two decades ago, discrimination claims, especially in the context of employment law, are unfortunately still a regular occurrence. This leaves one pondering the question, why is this so? Is it true that discrimination is still alive and vibrant in the workplaces of this country? Is it a case that litigants simply do not understand what a discrimination claim in fact entails? Or is it just a new form of ambulance chasing with a view to exhort monetary benefits, considering the fact that such claims in effect have a substantial punitive component and no limit on compensation? I must confess that I have my concerns that the spate of discrimination claims seeking money are founded on this latter consideration."
This was the opening remark of Snyman AJ in his judgment in D M Sithole and 18 Others v Dr Kenneth Kaunda District Municipality (Unreported judgment, JS576/13), a judgment handed down by the Labour Court in September 2017. While in agreement with Snyman AJ that claims of discrimination are a regular occurrence, it appears that this is not a question of a new form of ambulance chasing but rather a situation where litigants simply do not understand what a discrimination claim in fact entails. This is especially in the case of discrimination claims brought on an arbitrary ground where the employee claims they are entitled to be paid the same as another employee, who is allegedly doing the same work or work of equal value.
Section 6(4) of the Employment Equity Act 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."
This section has colloquially been referred to as the equal pay for work of equal value provision. Many employees consider this to mean that if I do the same work as a fellow employee, I must be paid the same amount. However, the section is not to be taken so literally. Section 6(4) does not state that all employees who do the same or similar work should be paid the same. Rather, it means that where employees who do the same or similar work and do not receive equal pay or are not employed on the same terms and conditions, the reason for the different treatment may not be one that is discriminatory. The difference is fundamentally important.
Where an employee claims that they are not paid the same or they are treated differently because of one of the grounds listed in s6(1) of the Employment Equity Act such as, for example, race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age or disability, the litigation is more easily dealt with. The employer will have to show that the reason for the different treatment alleged by the employee is not the reason or, if it is, that it is rational and not unfair, or otherwise justifiable.
However, where the employee contends that they have been discriminated against on an arbitrary ground, in other words not on one of the grounds listed in s6(1), the matter becomes far more complicated. In such an instance, the employee must set out what the arbitrary ground is, and prove not only the differentiation (in other words that they are treated differently to their fellow employees) but also that the different treatment amounts to discrimination.
The Labour Court has consistently said that complainant parties must properly identify the unlisted arbitrary ground relied upon, upfront, and in the pleadings. In National Union of Metalworkers of SA and Others v Gabriels (Pty) Ltd (2002) 23 ILJ 2088 (LC) at paragraph 19, the Labour Court held:
"What is therefore required, is that a complainant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds, namely that 'it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or affect them adversely in a comparable manner'."
The inquiry is threefold.
The important point to remember is that even if there is differentiation, it does not mean that the differentiation per se would violate the right to equality. It might not be irrational, and while it may amount to discrimination, the discrimination might not be unfair.
This position was further elaborated on in Chizunza v MTN (Pty) Ltd and Others (2008) 29 ILJ 2919 (LC) at paragraph 17 where the Labour Court held that:
"It is, however, trite law that although the existence of a differentiation is a precondition for discrimination, the mere fact that there is a differentiation or an arbitrary treatment of an individual, one could not equate a mere differentiation with discrimination.... Discrimination has a decidedly negative or pejorative connotation. A differentiation only becomes discrimination once a differentiation takes place for an unacceptable reason. These unacceptable reasons are all listed in section 6(1) of the EEA."
If the discrimination is not on a specified ground, then whether or not there is discrimination will depend on 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.
Accordingly, discrimination contemplated in this context means that it has to be shown that dignitas or the right of equality of the complainant as a person, or that person's personal attributes and characteristics, have been impaired or prejudiced. To describe it simply, the arbitrariness must be something akin or related to the kind of listed grounds in ss (1) of the Employment Equity Act.
Our law reports are becoming littered with failed discrimination claims where the discrimination is alleged to be based on an arbitrary ground. This is because the employee needs to establish properly what that arbitrary ground is and that the differentiation between that employee, and his or her fellow employee is based on that ground has the effect of impairing that employee's fundamental human dignity. Often, at first glance this appears easily done but on closer reflection is too high a hurdle in the ensuing litigation.
Frahm-Arp is a Partner, Labour, Employment and Human Rights Practice Group, Fasken Martineau (South Africa).