Picture this: one of your valued employees resigns at a time when it will be difficult and expensive to replace her. You offer her a raise to stay with the company, which she accepts. Crisis averted! Until her colleagues allege unfair discrimination…
The employment tribunal recently had an opportunity to consider this situation in the matter of Independent Municipal & Allied Trade Union obo Mphela v Aganang Local Municipality.
The Aganang Municipality had commenced a disestablishment process when certain traffic officers resigned to join another municipality. After the municipality offered the traffic officers increases and car allowances, they chose to remain. However, the other traffic officers employed by the municipality complained that the municipality unfairly discriminated against them on an arbitrary ground.
Section 6(4) of the Employment Equity Act provides that a difference in terms and conditions of employment between employees who perform the same or substantially the same work or work of equal value, which is based on a listed or arbitrary ground, is unfair discrimination.
In terms of section 11(2) of the EEA, where a complainant alleges unfair discrimination on an arbitrary ground (as in this case), he is required to prove, on a balance of probabilities, that:
- The conduct complained of is not rational;
- The conduct complained of amounts to discrimination; and
- The discrimination is unfair.
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Read this article by Nikita Shaw, Senior Associate: Employment & Compensation, Baker McKenzie, as well as a host of other topical management articles written by professionals, consultants and academics in the June/July 2017 edition of BusinessBrief.
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