An employee or group of employees have the right to approach the CCMA and lodge an unfair discrimination dispute relating to equal pay for work of equal value. This discrimination may be alleged on a listed ground which is set out in the Employment Equity Act (as amended), such as race or religion. It may, however, also be alleged on an unlisted or arbitrary ground.
Where the discrimination is alleged on an arbitrary ground, the provisions of the Employment Equity Act becomes extremely important as the employer will only be in a position to respond to the allegation if the said provisions are complied with.
To this end, the employee needs to exhaust all internal remedies to resolve the alleged discrimination. This can be done by way of a formal grievance. The grievance will need to include the arbitrary ground relied on as well as identify the comparator(s) with whom a comparison is drawn.
This is especially important for employers with a large workforce which requires an investigation into the allegations made.
Should an employee lodge a dispute with the CCMA without following any internal grievance procedure, the employer will be in a position to raise a jurisdictional point to this effect, and the employee will effectively be instructed first to attempt to deal with the matter internally before approaching the CCMA again.
If all internal remedies were exhausted, but the matter remains unresolved and is subsequently referred to the CCMA, the Applicant’s first hurdle will be to establish and prove the existence of the arbitrary ground on which he or she is alleging the discrimination.
The employee will then have to provide proof that the comparator does, in fact, perform the same or substantially similar duties, but receives a higher salary or wage. This is usually done by calling the comparator to testify verbally and submitting copies of the Applicant’s and the comparator’s salary advices.
It is only when the Applicant has discharged his or her onus of proof, that the onus will then shift to the employer to prove that justification exists for the discrimination, such as experience or qualifications.
It is very important for employers to take note of the onus that rests on the employee in order to ensure that they do not unnecessarily place the burden of disproving the allegations on themselves from the get-go.
Article by: Ilze Erasmus
Dispute Resolution Official – Port Elizabeth