1. Comparing the services rendered to the employer of same or similar value in terms of an objective assessment?
2. Is there difference with regards to terms and conditions of employment, like pay, between the services rendered that is being compared?
3. If there is a difference, can it be justified on fair and rational basis?

In considering all the arguments presented to the Court, did it find that length of service was not an arbitrary ground of discrimination and indicated that “It is difficult to see how length of service can be likened to an attribute akin to an immutable human characteristic, sexual or social identity, cultural or organisational association, or deeply held moral, political, or religious conviction. Consonant with this principle, the EEA Regulations, which were applicable at the time and were “published to prescribe the criteria and methodology for assessing work of equal value contemplated in section 6(4) of the Act” specifically stated that length of service is a fair basis for differential remuneration of individuals performing work of equal value.”

Explaining the above in more understandable English, the Court held that length of service cannot be seen in the same light or manner as certain of the other inherent human characteristics such as sexual or social orientation, religion and religious views, political affiliation or beliefs. The Court held that these form part of who you are, whereas your length of service to an employer does not form part of this, for obvious reasons.

The Court further clarified that the EEA (Employment Equity Act) Regulations at the time, specifically section 6(4), indicated that length of service is a fair reason to justify a differential between employees performing/ rendering the same or similar service, or service of the same value.

ow this would make sense to a lot of employers as, often longer serving employees earn more than those who started well after them, however, what is to be noted is that the length of service referred to in the above case (even if not specifically mentioned) refers to several years, and not months. It is to be noted that should two (2) employees have the same skills/ qualifications, start at more or less the same time and perform/ render the same services, they should accordingly be paid the same, where a person working twenty (20) years for a company is not expected to earn the same as somebody doing the same job/ function that started six (6) months back. Experience and loyalty are expected to be rewarded and with time, the newer employee will also earn more than those that started after them.

Even though the case did not deal with it, the issue of equal pay for equal work often comes in with the difference in payment for men and women who perform the same function or render the same service, with same qualification, experience, and length of service. This amounts to discrimination, which is one of the main issues that the EEA aims to address and eliminate.

Employers should be cautious, as a justifiable reason to differentiate (and in some cases discriminate) as seen by the Employer, would not necessarily been seen in the same light by the CCMA, Bargaining Council or Labour Court, as they apply an objective assessment, where the Employer’s assessment may tend to be rather subjective due to the closeness of the issue and their interest to the business. This is very understandable but potentially risky.

Should you be in need of any assistance with Employment Equity or would like us to review your Organizational Structure for potential issues or risks surrounding this, do not hesitate to contact SA Labour Help.