The Employment Equity Act (“EEA”) prohibits unfair discrimination against employees on grounds such as race, gender, pregnancy, marital status, age, disability etc. or any other arbitrary ground. The EEA recognises that a difference in the terms and conditions of employment between employees employed at the same company and performing the same or similar work or work of equal value, can constitute discrimination if such differentiation is based on one of these grounds. While length of service is not specifically listed as a ground of discrimination, it could be argued that it could perhaps fall under the ambit of the general “any other arbitrary ground”.
Employees can challenge the conduct of their employer if such conduct is believed to unfairly discriminate against them, but remembering always that the responsibility to prove such discrimination will fall to the employee to show that the employer’s conduct is irrational, unfair and discriminatory.
In your case, if you are to prove that your employer’s differentiation in remuneration amounts to pay discrimination, you will firstly have to show that the work which you perform is equal or of equal value to that of your more highly paid colleagues and that this difference is based on a prohibited ground of discrimination. As mentioned, length of service is not in itself a prohibited ground. Your claim will then have to show that this differentiation is based on any other arbitrary ground which if objectively evaluated will prove harm to your human dignity or affect you in a serious manner. If you pass this hurdle and can show the existence of discrimination, the second hurdle to pass, is to show whether this discrimination is unfair.
In this regard, one should note a recent labour court judgement which ruled that differential treatment is common in the modern workplace and that different terms and conditions of employment based on the length of employees’ service is rational and legitimate and that no provision in the EEA prevents an employer from applying a rule where new appointees are paid less than the longer serving employees.
Our courts therefore recognise that the current practice of considering employees’ respective lengths of service in considering how much to pay them and differentiating in pay based on length of service is justified and therefore fair. Even the regulations in the EEA recognise length of service as a factor which may justify offering different terms and conditions of employment.
This is not to say that difference in pay based on length of service will always be fair. The facts of each case will have to be considered. It will however make the proving of unfair discrimination a heavier burden for the employee claiming that such differentiation is unfair.