The correct way to deal with unequal treatment allegations

Since the introduction, in the Employment Equity Act, of the clause entitling people doing work of equal value to receive work of equal pay, there have been many cases referred to the CCMA on this issue.

Some employers feel that to correct allegations of unequal treatment, they only need to pay people more.

However, this is not the case as seen in Jordan and others / department of employment & labour — (2020) 29 CCMA 6.12.4 also reported at [2020] 4 BALR 367 (CCMA).

Facts of the case

The Commission found that the company had discriminated against the 18 labour inspectors by not upgrading them.

The Commissioner ordered the company to develop an equitable and non-discriminatory system for appointing labour inspectors.

The Commissioner declined to upgrade the inspector’s salaries because he found that this action would have perpetuated the unfair system currently in place.

The Commissioner found that the employees had proven the total of the amounts they had lost by not being upgraded.

He found that the employees’ claim for damages (recovery of patrimonial loss) could not succeed because they had merely assumed that they should have been upgraded to level 8, which had not been proven.

Unequal treatment does not mean that the lack of equality must be corrected by paying everyone at the highest level.

However, compensation was a different matter.

Compensation must be “just and equitable”, meaning that no specific amount can be attached to it.

While employees are entitled to be compensated, the amount must be fair to both employee and employer.

It should not be a “road to riches” for employees.

The employees were each awarded compensation of R150,000.

• In this weekly column, labour lawyer Jonathan Goldberg, CEO of Global Business Solutions, looks at various aspects of labour law.