Article 41/2025

The labour court, in AMCU v Aberdare Cables (2024) 35 SALLR 122 (LC), recently had to deal with the scenario as to the potential applicability of unfair discrimination ito s6(1) of the Employment Equity Act 55 of 1998 (EEA), where employees employed prior to a specific date (the so-called ‘old employees’) are remunerated at a higher rate than employees employed after such specific date (the so-called ‘new employees’). In line with the approach adopted by Prinsloo J in the said judgment, what is the suggested approach to be adopted when determining whether such different rates constitute a ground of unfair discrimination?

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1. In formulating the approach to be adopted, it is important to realise that such approach is based on an application of Harksen v Lane NO and Others 1998 (1) SA 300 (CC), so applied in Naidoo v Parliament of the Republic of South Africa [2020] 10 BLLR 1009 (LAC), with reference to s6(4), as well as s11, of the EEA and, lastly, taking into account the Code of Good Practice on Equal Pay for Work of Equal Value (the Code).
2. Stage 1 of the approach to be adopted
   • In this stage, the following question is to be answered: is there a differentiation between people or categories of people?
   • If the answer to the above is ‘YES’, then the next question is to determine whether or not such differentiation is rational.
   • Even if it is rational, it might still amount, firstly, to discrimination and, secondly, to unfair discrimination.
3. Stage 2 of the approach to be adopted
   • In this stage, the following question has to be answered: does the differentiation amount to discrimination?
   • If the differentiation is on a listed ground, then discrimination has been established.
   • If the differentiation is on an arbitrary ground, then discrimination is established if:
     • if the arbitrary ground is based on attributes/characteristics that impair human dignity, or
     • the arbitrary ground affects persons adversely in a comparably serious manner to a listed ground
4. Stage 3 of the approach to be adopted
   • In this stage, the question to be answered is: does the discrimination amount to unfair discrimination?
   • If the discrimination is on a listed ground, unfair discrimination is presumed.
   • If the discrimination is on an arbitrary ground, the complainant must establish fairness.
   • How does the complainant establish fairness? – what has to be determined is the impact of the discrimination on the complainant and others in similar positions.
5. Stage 4 of the approach to be adopted
   • In this stage, the following question is to be answered: if the discrimination is unfair, is there, despite such unfairness, a ground of justification justifying such unfairness?
   • An example of such ground of justification is contained in s6(2)(b) of the EEA – the inherent requirements of a job.
6. In casu, the LC held that the differentiation on the basis of paying newly- appointed employees less than old employees is not an unlisted ground of discrimination – it has a rational basis, seeing that it was adopted to avoid job losses; it furthermore applies irrespective of whether or not the newly-appointed employees had previous substantial experience, whether with the employer concerned in casu or other employers.
7. An approach that the differentiation in casu amounts to unfair discrimination on an arbitrary ground flies contrary to the approach adopted by, inter alia, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU obo Members and Others (2022) 43 ILJ 2584 (LC) and Pioneer Foods (Pty) Ltd v Workers Against Regression and Others [2016] 9 BLLR 942 (LC).