Black employees unable to prove discrimination in receiving less pay than white colleague

Five black employees who were paid less than a white colleague who did the same work as them at Makro have failed to prove discrimination against them on the basis of race.

This was the finding of the labour court after the five discovered their colleague, who had been employed as a merchandise controller since 2011, earned more than them. They became aware of this after her payslip was left on a printer in 2018. 

On April 24 that year, the five raised a grievance with management highlighting their dissatisfaction over salary disparities allegedly based on race. The company denied this was the case.

The next month, management at Masstores, trading as Makro, held a meeting with the five to discuss the alleged disparities. On November 13 2018 the company adjusted their salaries and those of other employees.

In April 2019 management issued the outcome of the grievance which, among others, stated all merchandise controller salaries had been reviewed against the pay range and adjustments made to ensure all were within the range.  

The company added that further adjustments were done based on an analysis of tenure in the position of merchandise controller in November 2018. 

It did this in accordance with a fair process to ensure disparities were eradicated and said the grievance was concluded. 

However, the South African Commercial Catering and Allied Workers Union (Saccawu), which represented the five, took the discrimination claim to the labour court.

The court said their case was premised on provisions of the Employment Equity Act that a difference in terms and conditions of employment between employees of the same employer performing the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in the act is unfair discrimination. These include race, gender, sex, sexual orientation, age and disability.

“The applicants’ case is simply that a white female, who has been employed by Makro as a merchandise controller since 13 June 2011, earns more than the applicants, notwithstanding the fact that they perform the same or similar work. They contend that the decision to pay her a higher salary is because she is white and the applicants are black,” acting judge Gugulethu Mthalane said in last week's judgment.

Makro denied there was discrimination and that the difference in salaries was due to race, she said.

Masstores' only witness testified that historically the recruitment process included considering a candidate’s employment history, whether with the organisation or not, and the salary the candidate was earning at the time.  

The witness said Masstores aimed to make an offer to a candidate attractive by increasing the candidate’s existing salary to a maximum of 15%. 

The judge said the five did not dispute this evidence. The court said it was not enough for them to merely allege the comparator earned more because of race.

In dismissing the case, the court said more was required to prove discrimination. The unequal treatment must be based on attributes and characteristics attaching to a person before it could fall within the meaning of discrimination.

Mthalane said this did not apply in this case as two other black employees earned far more than the white employee. 

“It follows therefore that if there is no dispute on the process followed by the (company) prior to 2018 and there are two black employees who earn way above the comparator, then that is the end of the inquiry as the process (not race) is the reason for the disparity”. 

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