29 March 2021 by and Employment Law Alert

Is there a deadline for referral of ongoing or repetitive acts of discrimination?

When does it become too late to bring an alleged unfair discrimination claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) under the Employment Equity Act 55 of 1985 (EEA)? Does the 6-month period set in section 6(10) of the EEA apply to discrimination of an on-going or repetitive nature?

Mngadi v Garth Jenkins NO and others (2021) 3 BLLR 248 (LAC) (Mngadi case) – Mngadi was employed in 1999 by Hulamin Ltd as an Operator. In 2008, he was promoted to Shift Leader, a Grade 11 position. The promotion meant that he now fell outside the bargaining unit defined in a collective agreement concluded between the employer and representative trade unions within the workplace. Mngadi contended that the exclusion of Grade 11 employees from the scope of the collective agreement amounted to unfair discrimination. The consequences of the exclusion were that he was paid less than his subordinates and was not entitled to certain benefits.

Mngadi initially referred a discrimination dispute based on what he identified as an arbitrary ground, to the CCMA in July 2016. He relied on the dictum of the Labour Appeal Court (LAC) in SABC Ltd v CCMA and others [2010] 3 BLLR 251 (LAC) – “where it was found that the date that an unfair labour practice arises does not coincide with its commencement date when the nature of the unfair labour practice is such that it is on­going – in such case, the dispute can be referred at any time…”. He contended that there was no need for a condonation application. In the event that this was incorrect, he applied for condonation in the alternative in respect of the failure to pay the correct standing in allowance. The CCMA refused condonation on the sole basis that his claim lacked prospects of success. The Commissioner did not deal with Mngadi’s contention that the act of discrimination was ongoing or repetitive, hence no need to apply for condonation. He merely assumed that the referral was late.

Mngadi took the Jurisdictional Ruling on review. He argued that condonation was in fact not required as the discrimination related to the low remuneration and benefits had been ongoing and repetitive since his promotion in 2008. It was perpetuated by every monthly salary payment. He continued relying on SABC Ltd v CCMA to advance the argument that condonation was in the circumstances not necessary. The Labour Court held that Mngadi’s dispute arose solely from his promotion to a Grade 11 position. The six-month period commenced then. Furthermore, there was lack of detail on how the promotion constituted unfair discrimination. Accordingly, the Labour Court held that Mngadi was obliged to apply for condonation.

Mngadi then turned to the LAC. The LAC noted that the Labour Court and CCMA merely assumed that the referral was late, thus condonation was required. They disregarded his argument that the discrimination was in fact ongoing or repetitive. The LAC held that the Labour Court was mistaken in finding that the merits of a dispute are relevant to the determination of jurisdiction – “whether a claim is meritorious or whether it is good in law is immaterial to the question of jurisdiction”. Merits are only relevant to the question of prospects of success. However, where a party contends that the CCMA has jurisdiction and condonation is not necessary, merits of the claim are unrelated to that inquiry.

The LAC went on to refer to SABC Ltd v CCMA - the applicants complained about the promotion of three artisans resulting in on­going discrimination in terms of which those artisans were favoured at their expense. The LAC held that since the applicants were continually being paid at a lower rate, the discrimination was not a single act but a “continuing or repetitive act” that recurred on each pay date. Applying that reasoning, the LAC found that Mngadi’s claim related to the alleged ongoing and repetitive discrimination was not out of time, at least in relation to the payment of his salary (discrete repetitive acts) in the six months prior to his referral. Condonation was not required to conciliate the alleged dispute with regard to those past payments and intended future payments. The Commissioner erred in declining jurisdiction entirely to conciliate the alleged dispute and the Labour Court erred in holding otherwise.

Key takeaways

The six-month period prescribed in section 6(10) of the EEA applies to single acts of alleged unfair discrimination. Where the alleged discriminatory acts are on-going or repetitive, the six-month period immediately preceding the referral will be considered for purposes of determining whether a referral is late. The CCMA will have jurisdiction only in relation to the conduct complained of that took place six months before the referral, as well as future conduct.

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