By Andi Michalow

The decision in National Education Health & Allied Workers Union on behalf of Sinxo & others and Agricultural Research Council is important primarily for two reasons. Firstly, it deals with when an employee can claim that he or she has been discriminated against on an arbitrary ground as envisaged in section 6(1) of the Employment Equity Act, 1998 (the “EEA”). Secondly, it serves as an alert to employers that when formulating a defence to an equal pay claim, the defences set out in regulation 7 of the 2014 Employment Equity Regulations (the “EE Regulations”) must be considered carefully. 

In this case, the applicants had been employed by the Agricultural Research Council (“ARC”) as farm foremen for a lengthy period of time. As a result of organisational restructuring, they were graded as farm supervisors at global grade (GG) 5. Other employees, who the applicants claimed performed the same work as them, were graded as farm foremen at the higher grade of GG8. The applicants were aggrieved by this difference in treatment and referred an equal-pay claim in terms of section 6 of the EEA to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). They argued that they performed the same jobs as the farm foremen and that they were being discriminated against on an arbitrary ground. The employer argued that the difference in pay grades and salaries could be justified on the basis that the two jobs required different outputs and that the farm foremen required a matric certificate and a tertiary qualification in order to do their job. The applicants did not have these qualifications. 

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