1 May 2025
At G&T Labour Solutions, we provide professional legal support for businesses of all sizes, ensuring compliance and protecting your interests. Our latest blog post takes a deep dive into a recent Labour Court case that highlights key aspects of the Employment Equity Act and unfair discrimination claims.
In the Labour Court case AMCU obo Members v Aberdare Cables (Pty) Ltd (15 February 2024), questions arose about what needs to be proven for allegations of unfair discrimination under the Employment Equity Act 55 of 1998 (EEA).
Aberdare Cables initiated a retrenchment process under sections 189 and 189A of the Labour Relations Act 66 of 1995 (LRA), reducing its workforce. During consultations, it was agreed that new employees would be paid the Metal and Engineering Industries Bargaining Council (MEIBC) rate, with existing employees retaining their higher Aberdare rates. This agreement, effective from January 2014, led to newer employees earning the minimum wage while older employees retained higher salaries.
The Association of Mineworkers and Construction Union (AMCU), on behalf of its members, approached the Commission for Conciliation, Mediation and Arbitration (CCMA) under the EEA, alleging unfair discrimination due to the existence of two different pay rates for employees performing the same job. This claim was based on section 6(4) of the EEA.
The court clarified that perceived arbitrary conduct by an employer does not automatically constitute discrimination. An applicant alleging unfair discrimination must identify a specific ground for the allegation. There is a difference between differentiation and discrimination; the former does not inherently lead to the latter unless an arbitrary ground is clearly identified and articulated.
The EEA prohibits unfair discrimination on arbitrary grounds that injure human dignity but does not ban wage differentiation outright. Section 6(4) prohibits wage differentiation only if it is based on any of the grounds listed in section 6(1).
The court found that AMCU did not identify an arbitrary ground for discrimination, leading to the conclusion that no discrimination was proven. Without a finding of discrimination, the fairness of the differentiation was not considered.
In summary, the court emphasized that perceived arbitrary employer conduct does not automatically amount to discrimination. An applicant must specify a clear ground for alleging unfair discrimination. Aberdare’s differing wages for similar work, despite being perceived as unfair, did not meet the criteria for unfair discrimination under section 6(1) of the EEA. More than mere differentiation is required under the EEA.
