The employee (Rebecca Ramerafe), a black female, was employed by Sun International as a guest services attendant from 1 January 2008 and was appointed to the position of surveillance auditor in 2014. In June 2016, Sun International employed Mr Botha, a white male, as a surveillance auditor in the same position. Both employees had the same job descriptions, performed the same work on a daily basis, were graded at the same level, and reported to the same surveillance shift manager. The employee earned R143,445 per annum while her comparator, Mr Botha, earned R271,440 per annum. The employee alleged unfair discrimination on the grounds of race and gender. Sun International defended the differential on the basis that: (1) it needed to match Botha's existing net remuneration to recruit him from his previous employer where he was earning over R200,000 per annum, with an additional R60,000 added to cover compulsory medical aid and provident fund contributions; and (2) Botha had superior qualifications (PSIRA Grade A) and over 30 years of experience in the security industry, including 10 years at Gold Reef City Casino, compared to the employee's more limited experience.
1. The award issued by the second respondent (Commissioner Percy Patrick Makgopela) under case number NWRB 413-17 on 3 July 2017 is reviewed and set aside. 2. The dispute is remitted to the third respondent (CCMA) for a rehearing before a commissioner other than the second respondent. 3. There is no order as to costs.
The binding legal principles established are: (1) In unfair discrimination claims based on listed grounds under section 6(1) of the Employment Equity Act, section 11 places the onus on the employer to prove on a balance of probabilities that the discrimination did not take place, or that any discrimination was rational and not unfair, or is otherwise justifiable - not on the employee to prove unfairness and irrationality. (2) Arbitrators must distinguish between and correctly apply the three discrete categories of 'work of equal value' under Regulation 4 of the Employment Equity Regulations: (a) same or identical work; (b) substantially similar work; and (c) work of equal value in different jobs requiring evaluation under the prescribed methodology. (3) Where the same work category applies (identical or interchangeable work) and a pay differential is admitted, the enquiry must focus on whether the employer has justified the differential under section 6(4) and Regulation 7. (4) 'Experience' as a justification factor under Regulation 7 must be broadly interpreted to include relevant industry experience and work history, not artificially limited to experience in the specific job title in question. (5) Commissioners must undertake a proper analysis of all justification factors under Regulation 7(2) based on the totality of the evidence, including qualifications, experience, seniority, and length of service. (6) Commissioners' remedial powers in unfair discrimination disputes are limited to the parties before them and they cannot make sweeping orders affecting the entire workforce beyond the scope of the dispute. (7) The rejection of witness evidence must be based on proper grounds, not conclusory assertions. (8) A material error of law that demonstrates a misconception of the nature of the enquiry or results in an unreasonable outcome constitutes a reviewable irregularity under the Sidumo/Mofokeng test.
The court made several non-binding observations: (1) It noted with regret the 'looseness of the language' in Regulation 4 of the Employment Equity Regulations, though the three discrete categories it establishes are conceptually different and must be respected by commissioners. (2) The court referenced the principle from Clay Cross (Quarry Services Ltd v Fletcher [1979] ICR 47) rejecting defenses such as 'I paid him more because he asked for more' and 'I paid her less because she was willing to come for less', indicating these authorities should have been considered in relation to the 'market forces' defense. (3) The court noted that while the differential in remuneration was 'not insignificant', this alone was not reason to find a lack of rationality, fairness or justifiability. (4) Van Niekerk J observed that the arbitrator's award 'lacks coherence, and comprises a series of often random observations', suggesting broader concerns about the quality of reasoning. (5) The court noted it was 'not necessary' to determine whether despite the reviewable irregularities, the award might nonetheless be capable of being salvaged on the basis that the result is reasonable, indicating this as a theoretical possibility in review cases. (6) The court observed that commissioners 'tasked with the determination of unfair discrimination disputes ought to appreciate and respect the limits of their powers of intervention', emphasizing judicial restraint. (7) The union's representative conceded that the sweeping order to eliminate all salary disparities was indefensible, which the court noted.
This judgment is significant in South African labour law as it clarifies the proper legal framework and methodology for determining equal pay claims under the Employment Equity Act. It emphasizes: (1) the importance of correctly applying the reversed onus of proof under section 11 of the EEA in discrimination cases based on listed grounds; (2) the need to properly distinguish between the three categories of 'work of equal value' under Regulation 4 of the Employment Equity Regulations; (3) that 'experience' as a justification factor must be broadly interpreted to include relevant industry experience, not narrowly limited to experience in the specific job title; (4) the requirement for a comprehensive analysis of justification factors under Regulation 7(2) based on all available evidence; (5) the limits of commissioners' remedial powers in unfair discrimination cases - they cannot make sweeping orders affecting employees beyond the parties to the dispute; and (6) the need for coherent reasoning and proper evaluation of evidence in arbitration awards. The case provides important guidance on how arbitrators should approach equal pay disputes and what constitutes reviewable errors in such determinations. It also reinforces the principle established in Mofokeng regarding the test for review of CCMA awards.