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Discrimination disputes under the Employment Equity Act: a comparator certainly needs to be a comparator

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In the Labour Appeal Court (‘LAC’) decision of Mdunjeni-Ncula v MEC, Department of Health and Another, non-reportable, (PA10-2019) [2021] ZALAC, the LAC dealt with an unfair discrimination claim based on sex/gender, in relation to sections 6(1) and 6(4) of the Employment Equity Act of 1998 (‘EEA’).

Section 6(1) of the EEA reads:

            ‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnical social origin, colour, sexual orientation, age, disability, religion, HIV status, conscious, belief, political opinion, culture, language, birth or any other arbitrary grounds.’

Section 6(4) of the EEA further reads:

            ‘A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in sub-section 1, is unfair discrimination.’

The employee’s case was therefore premised on the employer’s alleged breach of sections 6(1) and 6(4) of the EEA. Thus, the employee’s case had to be established, given the particular facts, on the basis that the salary differentiation between her and the other employees amounted to unfair discrimination on the ground of sex/gender.

Although alleging a specified ground(s) of discrimination, were there any individuals, in a comparable standing, that received preferential or better treatment over the employee in demonstrating that the employee was unfairly discriminated against?

In proving an unfair discrimination claim on this basis, an employee would indeed also need to show that there were other individuals at the workplace who were in a comparable position in relation to the employee, but that the employee was treated differently- due to the discriminatory ground alleged.

In the facts of Mdunjeni-Ncula, the LAC analysed three individuals alleged to be comparators in the matter and who ostensibly received a higher salary than the employee. The LAC had to determine whether these individuals were of course comparators, as envisaged under the EEA, and concluded in respect of each as follows:

  • first individual comparator: this individual was never employed by the employer in order to make the comparison in the first instance;
  • second individual comparator: this employee was offered a higher remuneration that was never actually received given the fact that it was not a lawful offer. The employer later remedied the offer to the correct remuneration amount. As a result, this removed the individual as a comparator in the claim; and
  • third individual comparator: this employee worked for the employer for 13 years and had received various salary increments during the course of his career. The remuneration that the individual received was a direct result of his length of service and     was based on a rational ground.

The LAC accordingly concluded that none of the individuals were in the same or similar standing as that of the employee.

Put differently, the employee could not sustain her alleged unfair discriminatory claim given that these individuals were in different circumstances than her, and importantly, that the differentiations were based on objective and justifiable grounds between the individual comparators in contrast to the employee.

In light of the LAC’s findings in Mdunjeni-Ncula, the employee’s appeal in the unfair discrimination dispute was dismissed.

From the facts of Mdunjeni-Ncula, and as part of the requirements in sustaining an unfair discrimination claim, it is thus demonstrable that comparators ought to be in the same or similar standing as that of a claimant and there should be no objective and justifiable reasons for the differentiation viz-a-viz the particular discriminatory ground.

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