If you're a member of a retirement fund and you think you're being discriminated against, take heart: there are plenty of avenues open to you.
A recent ground-breaking judgment in the Labour Court has given new hope to employees who have been victims of discrimination in retirement fund benefits.
The court has ordered the Gauteng tobacco company, Leonard Dingler, to pay out R180 000 to black employees to compensate for previous discrimination against them.
The court found that the employer had been guilty of an unfair labour practice in barring black, weekly-paid staff from the staff benefit fund, which was open only to monthly-paid employees.
The employer paid monthly contributions of 10 percent of salary to the staff benefit fund, but only five percent to the weekly-paid workers' retirement fund.
Though the amount of money paid out in this case is relatively small, legal experts believe it may open the way for much bigger claims against employers in future.
"Fund members must realise that they have rights that they can enforce," Kobus Hanekom, a senior manager in Old Mutual's legal consultancy, who was involved in the Dingler case, says.
"They have access to the Labour Court, the Pensions Adjudicator and the CCMA (Commission for Conciliation, Mediation and Arbitration).
"In the case of the CCMA, procedures are quick (less than 30 days), simple and cheap."
If you want to take up the cudgels against an employer you think has treated you unfairly, you need only prove that you have been discriminated against; in other words, that you were part of a group which was treated with less favour than another. You don't have to prove that the discrimination was unfair; in terms of the law, the onus of proof is on the employer to prove that it wasn't.
Your first port of call should probably be the CCMA, advises Hanekom.
"Access to the CCMA is easy and the commission could bounce the case up to the Labour Court if necessary."
The first objective of the court or the CCMA, he says, will be to correct a wrong. In other words, the first step will be to end the discrimination.
That is what happened in the Leonard Dingler case.
In its first judgment, in October, the Court found that the fund's rules had unfairly discriminated against black employees and that this was an unfair labour practice.
The court gave the company and the workers a chance to find a solution. The two parties reached agreement on the restructuring of the retirement funds, but deadlocked on the question of compensation.
Then, in a second judgment, last month, the court ordered the employer to pay the difference between contributions to the two funds, backdating payments for a year.
To claim compensation, Hanekom says, you will have to prove that you suffered damages, and that the damages were as a result of an unfair labour practice. Then the court will determine the amount to be paid, balancing the interests of both parties.
But don't think you'll necessarily get lots of money, he cautions.
Proving discrimination may be easy in many cases, but getting compensation is likely to be much more difficult.
In the Dingler case, for instance, the court took into account the employers' ability to pay, as well as the workers' claims. If other cases follow the same pattern, staff compensation payouts are likely to be limited, where the company can prove inability to pay.
And though it opens up new possibilities for retirement fund members, the Dingler case also leaves plenty of questions unanswered, experts note.
These include:
* What should constitute compensation? Should employees be limited to claiming employer contributions which have not been paid (as in the Dingler case), or should they be able to claim the full actuarial value of the unpaid contributions, including interest which would have been earned and returns on the investment?
* What about discrimination on grounds other than race, for instance, when the majority of employees are barred from joining, say, an executive retirement scheme?
* How would it be possible to define damages, where one set of employees belonged to a defined contribution fund, while the other belonged to a defined benefit fund (in the Dingler case, both funds were defined contribution funds)?
* What is the status of previous members of a retirement fund, who are now pensioners, but who were discriminated against in the past?
In the Dingler case, the employees have now gone to the Labour Appeal Court on behalf of company pensioners, most of whom were not eligible for compensation because the judgment only went back a year.
The question of time scale, Hanekom says, may also be linked to the implementation of the Labour Relation Act.
In the Dingler case, the Labour Court judge noted that she would not have to decide whether or not to go further back in time than the implementation of the Labour Relations Act.
This was because compensation was only awarded for one year.
But in future cases, judges might well find that discrimination can only be defined with respect to the country's new constitution, where it is expressly outlawed. Which could mean that compensation for discrimination before 1994 is harder to prove, says Hanekom.
"This is the first case of its kind.
"We don't really know yet what all the implications are."