While seldom addressed, there exists a prevalent “taboo” surrounding discussion about salaries among employees. Typically, employment contracts explicitly forbid individuals from sharing their salary details with colleagues, deeming such disclosures a potential disciplinary violation in the eyes of employers.
It is understandable that employers will attempt to prohibit such discussions as it could cause severe unhappiness in the workplace and upset the delicate balance between the employer/employee relationship..
Case Study
However, Section 78 (1)(b) of the Basic Conditions of Employment Act states that every employee has the right to discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person”. Keeping this in mind the Labour Court has recognized that in the case of Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997)18IJL1098 that remuneration is always a term and condition of the employment contract”.
Some employers attempt to have their employees “contract out of their rights” via a clause in their employment contracts however section 79 (2) states that no person may do, or threaten to do, any of the following:
- a) Require an employee not to exercise a right conferred by this part;
- b) prevent an employee from exercising a right conferred by this part; or
- c) prejudice an employee because of past, present or anticipated-
- i. failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;
- ii. Disclosure of information that the employee is lawfully entitled or required to give another person; or
- iii. Exercise of a right conferred by this part.”
The effect of this is that employers are prohibited from:
- (a) requiring an employee not to disclose the details of their remuneration to any person;
- (b) preventing an employee from disclosing the details of their remuneration to any person; or
- (c) prejudicing an employee because of a past, present or anticipated disclosure of such details.
Additional Guidelines
In addition, s79(2) provides that no person may discriminate against an employee for exercising a right conferred by this Part. Section 79(3) provides further that no person may favor, or promise to favor, an employee in exchange for the employee not exercising a right conferred by this Part.
After an employee has discussed his wages with another employee, it would be unlawful for the employer to punish or retaliate against such employee for having done so. It is also unlawful for the employer to question, threaten, or put an employee under surveillance for having had such conversations. Additionally, it is unlawful for the employer to have a workplace rule, policy, or hiring agreement that prohibits employees from discussing their wages and/or requiring the employer’s permission before entering into said conversations.
Because of s79, a clause in a contract of employment forbidding an employee from exercising their right to disclose their wages will be unenforceable. Further, any disciplinary action taken against an employee for exercising such a right could be considered unfair.
This section does not however grant employees the right to discuss the remuneration of other employees. Employers may prohibit employees from discussing salary information of other employees. Thus, should the remuneration details of an employee come to the attention of another employee, the latter employee cannot rely on s78 and 79 to avoid disciplinary action where his conduct contravenes a workplace rule.
Remuneration Discussion
However, when discussing remuneration, employees need to ensure that they are truthful about the details regarding their conditions of their employment that they are discussing and cannot be deceitful with the intention of causing an unpleasant working environment.
In the court case of Bethape v Public Servants Association and Others (J1709/2016) (2016) ZALCJHB 577 (9May 2016) the court dealt with a protected disclosure made by an employee, the court was clear regarding the necessity for an employee seeking protection from the law to act in good faith and, without good faith shown, cannot demand protection. Therefore, employees who threaten to disclose their salary to other staff in order to gain from the employer are not acting in good faith. This also extends to employees becoming insolent or insubordinate.
Speak to one of our legal professionals for more information regarding remuneration and employees.
