Salary disparity case heads to court
● Employers who base salary offers on the job applicant’s previous payslips are discriminating against black South Africans.
This is the contention at the heart of a Labour Court case brought by Phathuxolo Maqavana, who took up the legal cudgels after discovering when he worked at Massmart that he was earning 24% less than a white woman who was a fellow merchandise controller at Massbuild.
Maqavana, 31, took the company to the Commission for Conciliation, Mediation and Arbitration and lost.
Now he has applied to the Labour Court in Johannesburg for permission to launch a new dispute with the company, claiming its policy of basing salary offers on previous payslips is arbitrary and discriminatory.
In court papers, Maqavana, who is now a law student at the University of the Witwatersrand, said he resigned from Massbuild in December 2016, “in part because of a hostile work environment as a result of my queries into unexplained pay disparity”.
Since then, former black colleagues had encouraged him to continue his fight.
“I have no doubt that . . . this practice disproportionately affects black South Africans. This is against the equal-pay-for-equal-work principle protected by the Employment Equity Act and is anti-transformative.”
In his initial complaint, Maqavana took Massbuild to the CCMA after discovering a white colleague was earning R16 500 a month, R4 000 more than him.
Initially, the company said the woman had four years more experience than Maqavana, but when it emerged that the gap in experience was only six months, it introduced a new argument — that starting salaries were mainly influenced by previous payslips.
“The arbitrator found this last-minute about-turn to be a reasonable explanation and . . . that no discrimination based on race took place,” Maqavana said in his Labour Court affidavit.
He told the Sunday Times that he was determined to take the dispute as far as he could, adding that since his CCMA hearing former colleagues had informed him of changes at Massbuild, thanking him for his efforts.
A WhatsApp message he received in October said: “Hi Phathu, trust you are well. Just let you know that your fight is not in vain. Today Frank called one of the merchandiser controllers and gave her an increase of R3 300 and told her that Massmart told them to do so.”
Another the following month said: “A month ago, Massmart gave all the black buyers and planners amazing increases out of the blue. Well we all know why, it’s because of you.”
Massmart and Walmart group corporate affairs executive Brian Leroni said salaries were increased late last year at several Builders Warehouse departments.
The increases were not based on race or gender but on attempts to poach staff by an international competitor that had entered the market.
“You may be aware that per Mr Maqavana’s previous social media status, he joined this competitor after resigning from Massmart. This was also the case for other of his colleagues at Builders Warehouse.”
Leroni said before Maqavana’s CCMA hearing in August, company lawyers reviewed interview and appointment procedures.
“This very detailed and granular investigation revealed that experience and qualifications were merely the minimum requirements for purposes of shortlisting candidates and that the past payslip [at the candidate’s previous place of employment] played a role in determining salary, and to place the salary within the salary range for the job role.
“Specifically, the starting point would be past salary plus a more or less 15% increase. In Mr Maqavana’s case this resulted in a 52.78% increase that was added to his past payslip’s rate of pay.
“The outcome of the detailed investigation into the recruitment process was presented, together with supporting evidence, at the CCMA arbitration. In essence, the CCMA accepted the company’s use of payslips as a starting point to determine salary,” said Leroni.
Labour law expert Andrew Levy said companies normally asked to see past payslips to establish if potential employees were telling the truth about whether they were employed and the position they held.
I have no doubt . . . this practice disproportionately affects black South Africans Phathuxolo Maqavana