If we do the same work, why are we not earning the same salary?

Betty has three degrees and has been working for her current employer for almost 10 years. Albert only has one degree and has been working for the same employer for three years. Betty recently became aware that Albert is earning almost double her salary.  Despite the fact that they are in the same position with the same work functions. Betty feels that she is being discriminated against for being a female. She is of the opinion that she must get the same salary as someone who is doing the same work as she is and was wondering how the law can protect her.

The Employment Equity Act (“EEA”) protects employees against discrimination in the workplace through promoting equal opportunities and fair treatment of employees. This means that an employer may not unfairly discriminate against an employee on certain grounds, for example, gender, sexual orientation and pregnancy. This is in line with the right to equality that is protected by the Constitution.

If two or more employees are working for the same employer and perform the same type of work or work of equal value, the EEA provides that their employment contracts may not discriminate on any of the abovementioned grounds. Seeing as an employee’s salary forms part of his/her employment contract, employees should be earning an equal salary for equal work done, regardless of their gender.

However, it may not always be that simple and there are instances where different salaries are fair. If a female employee is of the opinion that she is earning less than an equally positioned male employee purely because she is a female, the employer must prove that the discrimination did not take place or that the discrimination is fair.

The following are some factors that an employer can raise to justify that it is fair for one employee who is doing the same work as another to earn a different salary:

  • the length an employee is working at his/her employer;
  • seniority of the employee;
  • the qualifications of the employee;
  • the ability, competence or potential of an employee to work above the minimum requirements for the acceptable performance of his/her work; and/or
  • employment that is temporary and only to gain experience or training, such as internships.

The EEA provides that a dispute based on not being equally paid for equal work done may be referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) within six months. If the dispute has not been resolved through conciliation at the CCMA, the dispute may be referred for arbitration at the CCMA (if all the parties to the dispute give consent) or it can be referred to the Labour Court.

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