LLW2601
Assignment 2
Semester 2
DUE 13 September 2024
, Critical Analysis of the AI Model's Response and Correct Legal Advice to Vatiswa
1. Introduction:
Vatiswa's legal situation involves the application of South African labor laws, particularly
concerning the principle of "equal pay for equal work" and the employment relationship
between her, Tseba Taba Tsago Professionals (TTP), and McDonald-Kentucky Corporation
(MKC). The AI model provided a general legal framework but requires refinement and a
more nuanced analysis of the relevant legal authorities and principles.
2. Employment Relationship and the Role of TTP:
The AI model correctly identifies that Vatiswa is employed by TTP, which assigns her to
work for MKC. Under South African law, this situation is typically referred to as a "temporary
employment service" (TES) arrangement, commonly known as labor broking. According to
Section 198 of the Labour Relations Act, No. 66 of 1995 (LRA), TTP is Vatiswa’s legal
employer. TTP is responsible for paying her salary, deducting taxes, and ensuring
compliance with Unemployment Insurance Fund (UIF) contributions. However, MKC, as the
client of the TES, also bears certain responsibilities, especially regarding fair treatment of
employees performing similar work .
3. Principle of Equal Pay for Equal Work:
The AI model mentions the principle of equal pay for equal work, which is a key issue in this
case. The Employment Equity Act, No. 55 of 1998 (EEA), specifically prohibits unfair
discrimination in employment, including in remuneration. Section 6(1) of the EEA stipulates
that no person may unfairly discriminate, directly or indirectly, against an employee in any
employment policy or practice, on grounds including race, gender, or any other arbitrary
ground .
The Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value, issued
under the EEA, further clarifies that employees performing the same or substantially the
same work should be remunerated equally unless there is a justifiable reason for a
difference in pay, such as seniority, experience, or performance . The AI model's assertion
that MKC cannot unfairly discriminate against Vatiswa is accurate, but it does not fully
explore whether TTP, as her employer, might also be liable under this principle.
4. Application to Vatiswa’s Case:
Vatiswa’s claim for equal pay must consider whether the difference in pay between her and
MKC’s directly employed filing clerks can be justified. If MKC and TTP cannot provide a
legitimate, non-discriminatory reason for the pay disparity (e.g., differences in qualifications,
experience, or responsibilities), Vatiswa may have a strong case for equal pay under the
EEA.
The AI model also correctly identifies that Vatiswa did not receive an annual bonus, which
could be a form of unfair discrimination if MKC provides bonuses to its directly employed
staff but not to those employed through TTP, despite them performing the same work. This
issue also falls under the purview of the EEA .
