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Section 10(6)(aA)(ii) of the Employment Equity Act (EEA) provides that the CCMA may arbitrate cases of unfair discrimination of employees earning below the BCEA threshold. And section 9 of the EEA includes job applicants in the definition of ‘employee’. The wording of section 10(6)(aA)(ii) is clearly: “… that employee earns less than” the amount of the BCEA’s earning threshold. This section does not add a provision such as: “ … or would have earned below the BCEA threshold”. Based on the aforegoing, where a job applicant who has been rejected for the post lodges an unfair discrimination referral to the CCMA and conciliation fails, can the applicant insist that the CCMA arbitrates even if the job that he/she was rejected for commanded a salary that is above the BCEA threshold? That is, can he/she successfully argue that, at the time of the alleged unfair discrimination he/she was not employed and therefore earned nothing? And that zero earnings is clearly below the BCEA threshold?
I don’t think you become entitled to “earnings”until the contract of employment is in place and you have actually worked in order to “earn” a wage or salary.. Therefore applicants for employment would have to refer their dispute to the Labour Court unless they are an existing employee applying for a position in house.
I prefer to disagree with Ingrid in that the first port of call would be the CCMA. Applicants enjoy the same rights as employees.
I don’t think the “zero earnings” argument is relevant. The purpose of the path to arbitration in the CCMA for job applicants below the threshold is to provide a speedy remedy for vulnerable employees who claim discrimination at the entry point of employment. This necessarily implies that “earnings” for the job the applicant applied for would have been below the BCEA threshold. The value of the earnings for the job would have been stated and known before appointment. And it could be anything from zero up to the threshold. Without this remedy, “vulnerable” applicants would have to refer a discrimination dispute to the Labour Court which has general jurisdiction over discrimination disputes – a path which is beyond the reach of most vulnerable would-be employees.
The CCMA ruled on this issue in 2019 in case number WEGE722-19. That ruling was in favour of the job applicants. This was based on the point that job applicants are not earning the pay for the job that they applied for, and the applicants would not have been able to afford to go to the Labour Court. The Commissioner therefore ruled that the discrimination matter must be arbitrated.
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