Employees may not be discriminated against based on 'geographical location'

© bowie15 – 123RF.com

Case details

Duma, an employee of the Department of Correctional Services, approached the Labour Court and claimed that her employer had discriminated against her on an unlisted ground.

On 8 September 2000, Duma was appointed as a custodial officer at salary level 3 at the Department of Correctional Services. Duma was later promoted to the post of ‘Senior Correctional Officer: Manager Legal Services: Voorberg Management Area: Western Cape’. This post was classified as a salary ‘level 8’ post. A job advertisement was subsequently placed for a number of Senior Correctional Officer posts. It was decided, by the department, that these posts should be changed to Assistant Director posts, which were classified as a salary ‘level 9’ post.

Duma claimed that her position should, in fact, have been classified as a salary ‘level 9’ position and she should therefore have received higher remuneration. Relying on section 6(1) of the EEA (prior to its amendment in terms of the Employment Equity Amendment Act 47 of 2013 (“Amendment Act”), Duma claimed that she had been unfairly discriminated against. Employees of the department in other geographical areas (Limpopo, Mpumalanga, North-West and Kwazulu-Natal), who had been employed as Managers: Legal Services, were being remunerated in accordance with ‘level 9’ whereas she, who was employed in the Western Cape, was being paid in accordance with ‘level 8’, despite occupying the same post.

The Court noted that an employee seeking relief in terms of section 6(1) of the EEA must be able to prove that there was differential conduct which amount to discrimination and that such discrimination was unfair. Discrimination will be present where the conduct impairs the employee’s human dignity.

Court ruling

The Court found that it was entirely arbitrary conduct for an employee to be remunerated more, simply because they reside in a particular province. Although this case was decided before the Amendment Act, which specifically introduces the notion of an ‘arbitrary ground’ into the legislation, the Court nonetheless found that the conduct infringed on Duma’s dignity. The Court found that the provisions of section 6(4) of the Amendment Act fortified this view even though it was not applicable to the matter at hand.

Having regarded the case of SA Airways v Jansen van Vuuren & Another, the Court also found that the discrimination was unfair. While the Department offered little more than a bald denial that there had been unfair discrimination, Duma advanced a number of compelling grounds indicating that such discrimination was in fact unfair. One such ground was the fact that “any distinction between employees based solely on the area of the country in which they work is, given our history, anathema to the society envisaged by the Constitution.”

As a result, Duma was awarded an amount equivalent to the difference between the remuneration she had received and the remuneration she should have received on the higher post grade. In addition, she was to be paid the higher salary going forward.

Importance of this case

This case introduces a further ground upon which an employee may not be discriminated against unfairly: geographical location. It also highlights the importance of ensuring that employees employed in the same post throughout the country are remunerated equally unless there is a sound justification for such differentiation. While this case was decided before the Amendment Act came into effect, it is nonetheless clear that such ground would be equally valid in terms of the newly amended EEA.