In Pioneer Foods (Pty) Ltd v Workers Against Regression (WAR) and others, the Labour Court had to review, for the first time, an appeal against an arbitration award relating to alleged pay discrimination in terms of the recently amended Employment Equity Act (EEA). The case considered the issue of “equal pay for equal work” and whether a pay discrimination claim founded not on a specific ground listed in the EEA (e.g. race, gender. etc.), but rather on an “arbitrary” ground, had been established. In the case, WAR alleged that it was unfair for Pioneer Foods, the employer, to pay its members, newly appointed to the company, only 80% of the salary, which longer-standing employees were paid. The arbitrator agreed and found in favour of the employees. The Labour Court disagreed and upheld the employer’s appeal, finding that no unfair discrimination had taken place in terms of the EEA. In reaching this conclusion, the Court noted that WAR did not base its claim on any listed ground and as such, had to rely on an unlisted, but analogous arbitrary ground to establish a proper claim. The Court ruled that for an unlisted ground to qualify as an arbitrary ground of discrimination, the ground had to be based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. In this case, the Court found that WAR did not establish an analogous arbitrary ground of discrimination at all – their only claim was that it was unfair for newly hired employees to be paid less than those with longer tenure. The Court held that treating people differently in the workplace, in accordance with their length of service with the employer, did not impair their fundamental human dignity or affect them adversely in a comparably serious manner.
South Africa