The issue of pay discrimination came before the courts in a recent decision of South Africa Municipal Workers Union on behalf of Tetyana v Nelson Mandela Bay Municipality.  Ms Tetyana was the only female employed as an Assistant Director in the Planning and Co-ordination Department.  She argued that two of her fellow assistant directors, both males, were employed in the same grade that she was, but were remunerated on higher salary notches.  Tetyana argued that the difference in remuneration amounted to gender discrimination.

Section 11 of the Employment Equity Act as it existed when the dispute arose required that whenever unfair discrimination is alleged, the employer must establish that the alleged discrimination is fair.

The courts have accepted however that a mere allegation of unfair discrimination in the abstract is not enough to satisfy this requirement and that any applicant must establish facts upon which the unfair discrimination on a specific ground can be laid.  Once this is done the burden of proof passes to the employer to prove that the conduct did not amount to unfair discrimination.

The hurdles that Tetyana had to cross included:-

• She had to prove that she had been discriminated against by showing that she had been treated differently to an employee performing work of equal value; and
• that the discrimination was based on a prohibited ground, in this case her gender and as a consequence thereof, was unfair.

Ms Tetyana was successful in being able to show that she was being paid less than the two male counterparts in her department on her grade.  However, Ms Tetyana fell short in her attempts to clear the second hurdle of proving that the discrimination was linked to her gender and thus unfair.

Having heard evidence, the court found that the comparators had been employed by the Municipality as Project Managers prior to their employment as Assistant Directors whereas Ms Tetyana was an external candidate.  Having been appointed as Assistant Directors, the comparators complained that their remuneration was less than what they had previously earned and as a result their salary notches were amended.  The fact that they were males was not the reason that they were on higher notches but rather because of the pay anomaly.  The court concluded that the salary progression of the comparators and that of Ms Tetyana could not be compared given their different employment history at the municipality.

The judgment supports the contention that any claim for pay discrimination will fail if there are objective reasons that can reasonably explain the difference in the pay levels.  There will have to be a reasonable possibility that the differential in pay is based on a prohibited ground before an employer is called upon to justify its position.

Notwithstanding this threshold, it is unlikely that employees will refrain from making such allegations.  Employers are urged to deal with these matters quickly and transparently.