Who bears the burden of proof in equal work for equal pay claims?

Whether the employer had unfairly discriminated against an employee based on geographic location, by paying the employee less than employees in other provinces doing same or similar work.


To succeed with a claim of unfair discrimination based on an arbitrary ground an employee would need to adduce evidence or establish link between the arbitrary ground and the differentiation complained of. There may be other plausible reasons justifying pay differential such as a difference in workload which justifies the difference in pay between employees.

Court’s decision

In the case of Minister of Correctional Services & others v Duma (2017) 38 ILJ 2487 (LAC) the Labour Appeal Court (“LAC”) had to consider this issue. The respondent (“Employee”) was appointed to the post of senior correctional officer on a salary level 8. After the appointment, the employee became aware that employees at various places in four other provinces who performed the same work with the same job description were on salary level 9, and earned a higher remuneration than she did. The Employee believed that she was discriminated against on the ground of her geographical location. The Employee contended that she was doing the same amount work as four colleagues in other provinces and that it was discriminatory of the employer to compensate her less than the others. The employer agreed that employees in the same position as the Employee would perform the same kind of work no matter where they are located; however, the volume work would differ from region to region.

The LAC noted that section 6(1) of the Employment Equity Act 55 of 1998 (“EEA”) provides that “No person may unfairly discriminate, directly or indirectly, against an employee in an employment policy or practice” on one or a number of the grounds set out in the section, which include “on any other arbitrary ground”. Furthermore, in terms of section 6(4) differences in remuneration between employees who perform the same or substantially the same work based on one of the grounds in section 6(1) amounts to unfair discrimination.

The LAC noted further that the Employee bore the burden to prove that the conduct complained of clearly amounted to a differentiation on geographical grounds and that it was unfair and impaired her dignity.

The Employee was required, at a minimum to show that the nature and volume of the work was similar to that of employees in the same position in other provinces who occupied a higher grade level and thus the ground of differentiation was in fact geographic location.

The LAC held that the employee did not provide concrete evidence of this other than the inferences drawn by the Employee. Accordingly, the Employee had not proven that the differentiation was as a result of geographic location and there were other plausible reasons, such a differences in workload, which could explain the differentiation.

Importance of this case

When claiming that the reason for a difference in pay or remuneration is based on  an “arbitrary” ground, the employee bears the burden of proving not only that the difference is due to the ground on which they rely but also that it amounts to unfair discrimination.

Jacques van Wyk is the Director at Werksmans Attorneys.

Orchestra or jazz band?

Many companies are experiencing great difficulty coping with the rapid and disruptive changes they’re encountering in the world of work.

The main reason is that they’re performing as an orchestra when they need to perform like a jazz band.

I can still clearly remember the first time I experienced a live classical music concert performed by a live orchestra. I was completely transfixed by the sounds that emanated from the collection of instruments played by the highly skilled, highly professional musicians under the baton of the conductor.

The musicians in an orchestra are highly talented, highly trained, highly disciplined and highly competent. Most of them can “sight read” music, which means they can play any music that’s put in front of them and require minimal rehearsal before a performance to iron out a few technicalities. During the performance, every musician has their music score in front of them and responds to every facial expression and hand and body movement of the conductor, who has the full score with every musician’s part in front of him or her.

Generally speaking, orchestras with fewer than 50 musicians are referred to as chamber orchestras and considered “small”. Full size symphony or philharmonic orchestras feature between 50 and 100 musicians.

Up until 20 or so years ago, there were regular classical music concerts performed by live orchestras. Today, you’ll have to look long and hard to find classical music concerts performed by full orchestras.     


Because the world – and the world of music – has moved to a different space. For one, a century or so ago, classical music was pretty much the only kind of music that the financially comfortable were exposed to. Another reason is that full size orchestras are considered too unwieldy to drag around when one can perform music with a lot fewer musicians – like in a jazz band.

There are a number of similarities between orchestras and jazz bands – they both have highly competent musicians – but there are also a number of significant differences.

Many jazz musicians, like their classical counterparts, can read music, but almost all jazz musicians have something that classical musicians don’t have and, even if they had, would not be allowed to use it.

That ”something” is improvisation skills. Improvisation means you are able to make something up as you go along, and that’s what jazz musicians can do that classical musicians can’t or aren’t allowed to do. You see, classical musicians are trained to play what’s put in front of them and they know how to do that very well because they can sight read very well.

Regardless of whether jazz musicians can or can’t read music, they DO have an excellent understanding of the way music works. They understand the many different scales in every key. They know what chords apply to which keys, and they also know and use a multitude of different chord formations which make their music unique and interesting. Then, too, they not only understand timing (as do classical musicians), but they also understand syncopated timing which gives jazz music its distinct character and appeal.  

With their knowledge of scales and chords, jazz musicians can take pieces of music to new heights with their own interpretation of the music while orchestral musicians may not deviate from the music in front of them.

Companies who still operate in an old paradigm perform like orchestras. They have one leader (the conductor) who makes sure that everybody does what they’re told to do. I repeat … what they’re told to do – as per the agreed strategy (music score). There’s no scope for personal expression. Not so in a jazz band. For one, most of them don’t have or need conductors. They’re much smaller than orchestras (you’ll never find a 100 piece jazz band) and everybody knows what the key, chords, tempo and style of each song is and gets on with it. Jazz musicians routinely use their understanding of the rules of music, not the music score, to produce inspiring music. They give one another space to express themselves by allowing each musician to take a music break when each musician takes a solo with their instrument while the others play a supportive role, referred to as “backing” in the business.

Do you see where this is going?

In today’s volatile, uncertain, complex and ambiguous world, one fixed strategy will not work. There is no longer a clear highway on which the CEO (the driver of the bus, as Jim Collins called him in his book Good to Great) steers the company (the orchestra) to where he/she thinks they should go.

Today’s leaders have to be highly collaborative and less prescriptive. During an orchestral performance, everybody – musicians and audience – knows who the conductor is. In a jazz band, the musicians know who the leader is but the audience doesn’t necessarily. And the jazz band leader leads in a very different way, but still succeeds in getting the jazz band to produce inspiring music through musicians who play with passion, unity and skill to achieve their goal of entertaining their audience.

Outdated companies are performing like orchestras playing what’s on the score and nothing else then wondering why they’re losing customers and market share. If you want to adapt to the new world of work and produce something unique that grips and inspires people, stop performing like an orchestra and start performing like a jazz band!

For more information on my “Innovative Leadership for Executive Teams” programme in which I use my classical and jazz musician skills to show executive teams how to make the shift from orchestra to jazz band, email me at alan at hrfuture dot net.

Alan Hosking is the publisher of HR Future magazine, www.hrfuture.net, @HRFuturemag, and helps business leaders learn to lead with purpose and poise.

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