DISCRIMINATION BASED ON GEOGRAPHIC LOCATION

“Why don’t you come work in Joburg? You will get paid more…” The number of times that has been said in social gatherings are countless. There tends to be this view in South Africa that people working in larger cities are more favourably remunerated than those working in smaller cities, doing the same type of work. This may be true, but is it fair?

Section 6 of the Employment Equity Act (as amended) states that a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work of equal value that is directly or indirectly based on the grounds of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture language, birth or any other arbitrary ground amounts to unfair discrimination.

Duma v Minister of Correctional Services & others In a recent judgement in the Labour Court, the Labour Court ruled that the failure of an employer to pay an employee in one province, the same remuneration as employees in the same positions in other provinces, constitutes unfair discrimination based on the arbitrary ground of ‘geographical location’ in terms of the Employment Equity Act. The Court found that it was entirely arbitrary conduct for an employee who is remunerated more simply because they reside in a particular province.

Mrs Duma is employed by Correctional Services. In August 2012, having failed to succeed in having a dispute arbitrated as an unfair labour practice relating to promotion, she referred an unfair discrimination dispute to the Labour Court, claiming that she was unfairly discriminated against on the arbitrary ground of the geographic location of her post. She claimed that, in her position as Western Cape Senior Correctional Officer, she was paid less than comparable positions in other provinces. Importantly, rather than attempting to justify any such remuneration differences that existed between posts in different regions, it appears the employer in its defence chose to deny that it had discriminated against Mrs Duma.

The Labour Court was required to apply the unfair discrimination definition before it was amended in 2014 to include ‘discrimination on any other arbitrary ground’, but it is clear from the judgment that it was influenced by these subsequent amendments in coming to its conclusions. In summary, it found that Mrs Duma had met the onus of proving that she had been unfairly discriminated against, based on the following submissions:

• she was treated arbitrarily on a ground that impacted on her dignity;
• the employer had not shown that it was necessary to distinguish between the comparable posts in different provinces, or that there was a purpose in doing so;
• she had been prejudiced financially as a result of the discrimination;
• any distinction between employees based solely on the area of the country in which they work, is “given our history, an anathema to the society envisaged by the Constitution.”
• the EEA aims to give effect to the right to equality and the eradication of discrimination.

The Labour Court awarded Mrs Duma compensation based on the difference between the remuneration she actually received and what she should have received had she been correctly graded, retrospectively for the three years before she lodged her Labour Court claim and up to the present. It was accepted that the claim for the period prior thereto had prescribed. Going forward, the employer was ordered within a calendar month to adjust her current remuneration to the required level.

This judgement introduces geographical location as a further ground (arbitrary) upon which an employee may not be unfairly discriminated against. Employers must ensure that if there is a particular remuneration differentiation between employees who are employed in different provinces that there is sound justification for the differentiation or they may be at risk of adverse judgements in favour of their employees.

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