Authored by Michael Balie.
The Labour Court held that a pay difference based on geographical location does not, without more, amount to unfair discrimination under the Employment Equity Act, 1998 (EEA). The decision distinguishes a pay disparity from unfair discrimination.
The facts
The case concerned two employees of the Gauteng Provincial Government based in Pretoria: a cleaner employed since 1987 and a messenger employed since 1996. In 2022, they discovered that colleagues doing the same or similar work in Johannesburg earned more. A Johannesburg-based comparator earned R17 857,87 per month, while the employees earned R14 216,50. They referred a dispute to the Commission for Conciliation, Mediation and Arbitration, alleging unfair discrimination based on geographical location.
The arbitration award
The arbitrator found that the employer had unfairly discriminated against the employees. The award treated geographical location as an arbitrary ground under section 6(1) of the EEA and relied on the equal-pay provisions in section 6(4) of the EEA. The central issue was whether geography could qualify as a discrimination ground under section 6(1). The employees then asked the labour court to make the award an order of court.
Why the court refused
The court applied the test in Harksen v Lane NO and Others. In plain terms, it asks whether people were treated differently and whether that difference has a rational basis. It then asks whether the reason relates to a characteristic that can undermine human dignity. The impact must be as serious as discrimination based on listed grounds, including race, gender, or disability. A pay difference does not, by itself, meet that standard.
On these facts, an employee’s location in Pretoria was a circumstance of employment, not an intimate personal characteristic. It did not categorise, marginalise, or oppress the employees or otherwise impair their dignity. The court also recognised that geography could ground a discrimination claim if linked to apartheid-era spatial segregation. That link was absent here.
The outcome
Because the arbitrator applied the wrong legal test, the court dismissed the application under section 158(1)(c) of the Labour Relations Act, 1995. The application sought to make the award an order of court; it was not a review application. The court therefore could not set the award aside. The award remains standing, but it cannot be enforced as a court order.
What this means for employers
Section 6(4) of the EEA protects equal pay for equal work where the difference is directly or indirectly based on a ground in section 6(1) of the EEA. It does not provide a standalone remedy for every pay disparity. Employers with employees in various locations should:
• Document objective reasons for geographic pay differences, including market conditions, cost-of-living factors, and operational requirements.
• Check that any different pay for the same or substantially the same work, or work of equal value, has a lawful and explainable basis.
• Assess whether a geographic distinction connects to race or another ground that can impair dignity, particularly where historical spatial segregation is relevant.
Clear records and consistent pay practices help employers explain differences and identify potential discrimination risks.