A follower on the Scorpion Legal Protection Facebook page recently asked us if a company can pay two employees who are on the same level, with the same job, different pay. Scorpion explains what SA’s labour laws say.
This isn’t a simple yes or no question, because the circumstances of each case will be different, but generally the answer is that it’s not unfair to pay two employees a different wage for the same work as long as the reason for this is not based in discrimination. Discrimination in the workplace is dealt with by section 6(1) of the Employment Equity Act 55 of 1998 (EEA), which says that if the reason for the difference in remuneration is because of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth or on any other arbitrary grounds it will be unfair and unjustifiable.
What determines pay and pay differences?
The Codes of Good Practice on equal pay/remuneration for work of equal value lists reasons why employees may be paid differently for performing the same job. This includes:
- The length of service or seniority;
- The skills, qualifications, ability and competencies of an individual;
- The physical, mental and emotional effort required to perform the work; and
- The physical environment, psychological conditions, time when and geographic location where the work is performed.
When is it not unfair discrimination?
Section 6(2)(b) of the EEA says that the following are not unfair discrimination:
- Affirmative action measures which are consistent with the purpose of the act; and
- Distinguishing, excluding or preferring any person based on the inherent requirements of the job (for example, an accountant requires a specific qualification).
If you feel you are being paid differently because you are being unfairly discriminated against, you can approach the CCMA for assistance.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of publication.