Equal pay: Comparison do’s and don’ts

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By Hugo Pienaar

Topics Constitutional Law & Civil Rights | Labour Law

21 Feb 2019

A brief explanation of the role of comparators in equal pay claims.

An equal pay claim generally ensures that two people doing equal work are paid equally. It is brought by the claimant, an employee, either as an unfair discrimination claim, or an equal treatment claim. Both claims require comparators to be selected by the claimant. The claimant must then compare their position to that of the chosen comparator in order to prove that there is a pay disparity, where after the employer may raise certain defenses as set out in Regulation 7 of the Employment Equity Act, No 55 of 1998 (EEA) or s198D of the Labour Relations Act, Act, No 66 of 1995 (LRA).

How do you choose a comparator?

Presently, South African law requires that the comparator must be employed by the same employer.

In the United Kingdom (UK), claimants may use questionnaires, apply to the tribunal or approach the relevant trade union for information relating to potential comparators. There are no such similar procedures in South Africa.

For a South African claimant, it is important to ensure that the chosen comparator reflects the choice of claim that you are bringing. A s6 EEA claim would require a comparator to have different terms and conditions of employment despite performing the same or substantially the same work or that such work is of equal value. The claimant must prove discrimination on a listed or an arbitrary ground.

A s198D LRA claim would require a permanent employee to be chosen when the claimant is a “temporary employment service employee” or a fixed-term employee and it must be proven that the inequality is not justifiable on the basis of seniority, experience, merit, quality or quantity of work performed etc. It is not required to prove discrimination. This remedy only applies to employees earning below the BCEA threshold and employed for a period of longer than three months.

Stuck with your comparator?

South African law and academia are quiet about what happens to comparators once chosen.

The UK is a good source of information which can aid the interpretation of our legislation. The Constitution of the Republic of South Africa, Act, No 108 of 1996 states that the courts must prefer any reasonable interpretation of any legislation that is consistent with international law over any alternative interpretation that is inconsistent with the same.

In the UK, an employee can name more than one comparator, though the House of Lords have warned tribunals that picking too many may be seen as abusing the equal pay procedure. This may be of application to South Africa.

Once chosen, can one change comparators?

In the UK case of Prest & Ors v Mouchel Business Services Ltd & Anor, the tribunal found that the actual substitution of comparators did not matter as long as the work done by the new comparator was comparable to the work done by the claimant, so that the nature of the claim did not change.

Additionally, the UK tribunals have also held that pay will not fall back to its previous level if your comparator leaves the employment. This shows that the claim is linked to the actual employment held by the comparator, not to the individual.

When one applies this international law to South Africa, employees should be able to choose more than one comparator, substitute comparators (provided the nature of the claim is not changed) and experience no pay decreases if the comparator leaves employment.

Suspending your employee. The long and short of it.

Provided By Adams & Adams

By Irshaad Savant

Topics Constitutional Law & Civil Rights | Labour Law

22 Feb 2019

The Constitutional Court in Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, recently held that ‘there is no requirement’ for an employer to afford an employee an opportunity to make representations why the employee should not be suspended (in the case of precautionary suspensions), prior to suspending the employee.

An employee usually suspected of having committed serious acts of misconduct is placed on what is termed a ‘precautionary suspension’, either before, during and/or pending the finalisation of the investigation and/or resultant disciplinary hearing. A punitive suspension on the other hand, is meted out to an employee as a sanction, usually following a disciplinary hearing.

The Long Story

On 19 February 2019 the Constitutional Court handed down judgment in an application seeking leave to appeal against a judgment of the Labour Court relating to two review applications, one concerning Mr Allan Long’s dismissal and the other his suspension prior to dismissal.

Mr Long was previously employed by South African Breweries (SAB) as, district manager for the Border District. His duties required him to maintain the legal compliance requirements pertaining to a fleet of vehicles. In May 2013, a trailer owned by SAB was involved in a fatal accident, and it was alleged that the trailer was in a state of disrepair and unlicensed before the accident. The company suspended Mr Long to ensure that an investigation into allegations of misconduct against him was unhindered. SAB subsequently charged Mr Long, convened a disciplinary hearing against him and dismissed him.

Mr Long challenged his suspension as unfair labour practice in terms of the Labour Relations Act (“LRA”). He also challenged the fairness of his dismissal. The CCMA held that his suspension was unfair inter alia, because he was not afforded an opportunity to make representations to show why he should not be suspended. The CCMA also found that his dismissal was procedurally fair but substantively unfair and ordered his reinstatement (it did not find him guilty of any acts of misconduct).

The company subsequently challenged the CCMA’s findings on review to the Labour Court. The Labour Court was of the view that: (a) Mr Long’s suspension was not an unfair labour practice, and (b) he was guilty of one of the charges, a ‘dereliction of duties and, as a result, the arbitrator’s award was unreasonable’. The Labour Court, accordingly, reviewed and set aside the arbitration award in the dismissal dispute and substituted the CCMA’s finding in the unfair labour practice dispute.

Dissatisfied, Mr Long ultimately applied for leave to appeal against the Labour Court’s judgment to the Constitutional Court. He argued inter alia that the Labour Court’s finding that employees are not entitled to a pre-suspension hearing does not pass constitutional muster. He also took issue with the length of the suspension (some 3 months) and with various aspects of the dismissal dispute.

The court highlighted the different implications between precautionary and punitive suspensions. The court reasoned that because Mr Long’s suspension was ‘precautionary’ and not ‘punitive’, requirements relating to fair disciplinary action (such as the right to be heard prior imposing any disciplinary sanction in relation to allegations of misconduct) in terms of the LRA cannot find application. Accordingly, the court held that there was no requirement to have afforded Mr Long an opportunity to make representations prior to his suspension.

In assessing the requirements of a fair suspension, the court held that the suspension ought to be for a fair reason and the question whether the employee is prejudiced as a result, must be asked. The court held that the Labour Court’s finding, that it was for a fair reason (for an investigation to take place), cannot be faulted. The court also mentioned that a suspended employee on full pay, will generally ameliorate prejudice suffered by the employee. In relation to the dismissal dispute, the court was equally of the view that the challenge lacked merit. In the circumstances, the court refused to grant leave to appeal.

The Short Story

What are possible implications of the judgment in respect of precautionary suspensions?

The judgment is ground-breaking in the sense that it is no longer a procedural requirement, for purposes of the Labour Relations Act, for an employer to at least afford an employee to make representations why the employee should not be suspended prior to deciding whether to suspend the employee.
An employee may however nonetheless challenge a suspension as an unfair labour practice if:
– a disciplinary code and/or an employment contract and/or collective agreement requires an employer to afford the employee an opportunity to be heard (or make representations) prior to being suspending but denies the employee this opportunity;
– it was not linked to protecting the integrity of the pending or ongoing investigation (into possible allegations of misconduct) and/or disciplinary hearing;
– it is without pay or in the absence of a pending or ongoing-investigation;
– it is for an unreasonably long period (although it remains to be seen whether our courts will accept that a suspension with pay will always remedy any prejudice an employee may suffer as a result).
Public sector employees may argue that in terms of administrative law they are entitled to be heard or to make representations why they should not be suspended, prior to possibly being suspended.
An Employer may nevertheless afford an employee an opportunity to be heard and/or make representations why the employee should not be suspended prior to deciding whether to suspend the employee.

In light of the Constitutional Court judgment, it is vital that employers review the applicable policies regulating suspensions.

Wednesday, 27 February 2019