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did not know on which un­listed ar­bi­trary ground they re­lied. It was only in their heads of ar­gu­ment in court that WAR al­leged, for the first time, that the grounds on which they based their dis­crim­i­na­tion claim was the fact that newly ap­pointed em­ploy­ees were be­ing paid less merely be­cause they had started work­ing later than their long-serv­ing col­leagues.

The court held that “noth­ing in the Em­ploy­ment Eq­uity Act pre­cludes an em­ployer from adopt­ing and ap­ply­ing a rule in terms of which newly ap­pointed em­ploy­ees start at a rate lower than ex­ist­ing, long-serv­ing em­ploy­ees”. The court held fur­ther that the Code of Good Prac­tice on Equal Pay/Re­mu­ner­a­tion for Work of Equal Value (“code”) ex­pressly recog­nises se­nior­ity or length of ser­vice as a con­sid­er­a­tion that could jus­tify dif­fer­en­ti­a­tion in re­mu­ner­a­tion, as do the reg­u­la­tions to the act.

As a re­sult, the court held that in order for “mere dif­fer­en­ti­a­tion” to amount to dis­crim­i­na­tion the rea­son for the dif­fer­en­ti­a­tion must be ir­ra­tional. In the in­stance where one re­lies on an “ar­bi­trary ground” one must be able to show, ob­jec­tively, that the ar­bi­trary 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”.

If one were to adopt a wider in­ter­pre­ta­tion of “ar­bi­trary ground” aris­ing out of the amend­ment to the Em­ploy­ment Eq­uity Act then one must show that the dif­fer­en­ti­a­tion was capri­cious or for no good rea­son (ie ir­ra­tional). Even if dis­crim­i­na­tion, how­ever, is found to be present it must none­the­less be found that such dis­crim­i­na­tion is also “un­fair”.

On the facts the court found that there was in fact a ra­tio­nal con­nec­tion be­tween the dif­fer­ence in re­mu­ner­a­tion and the length of ser­vice, ie to re­ward long ser­vice and loy­alty of ex­ist­ing em­ploy­ees. There­fore the dif­fer­en­ti­a­tion was not ar­bi­trary and, as a re­sult, was not dis­crim­i­na­tory.

The court went fur­ther and noted that even if the dif­fer­en­ti­a­tion were found to be ar­bi­trary and dis­crim­i­na­tory, it was in any event not un­fair.

This case ad­vances the view that dif­fer­en­ti­a­tion in re­mu­ner­a­tion of peo­ple per­form­ing the same work on the ba­sis of length of ser­vice does not if it­self amount to ar­bi­trary or un­fair dis­crim­i­na­tion. The code of good prac­tice specif­i­cally refers to the prac­tice of dis­tin­guish­ing be­tween em­ploy­ees’ length of ser­vice when de­ter­min­ing re­mu­ner­a­tion.

Pic­ture: iS­TOCK

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