Recently, some of the Employment Equity Act 55 of 1998’s (the act) sections have been amended.

This article specifically address the amendments made to sections 10 and 11 of this act.

It can be summarized as follows:

(1) An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation. This must be done within 6 (six) months of the alleged discrimination (or testing);

(2) If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication. The parties to a dispute may also agree to refer the dispute to arbitration;

(3) Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the Labour Relations Act. The dismissal must be referred to the CCMA within 30 days.

These amendments afford any employee the right to refer a matter of unfair discrimination as listed in the act to a dispute resolution tribunal.  It is however interesting and also very important to note that the act specifically only refers to the CCMA as the authorised dispute resolution tribunal.

Normally, if a business is governed by a bargaining council due to the nature of its respective industry, a point in limine (at the threshold) can be raised regarding jurisdiction if a case is wrongly referred to the CCMA and a specific bargaining council enjoys jurisdiction in that specific industry.

The reason why raising a point in limine regarding jurisdiction is quite a useful tool, is because it can either set an arena in which the dispute can be resolved on terms more favorable for the employer, or it can be a useful delaying tactic which might cause the applicant/employee to reconsider pursuing the case due additional administration that needs to be undertaken.  It can also give some valuable insight into the case of the applicant/employee which can be used in the correct dispute resolution tribunal who enjoys jurisdiction, like the MEIBC, BCCEI, BCRFLI, MIBCO, etc.

However, the question now arises whether an unfair discrimination case should also be referred to a bargaining council if same governs your business and if a point in limine regarding the CCMA’s jurisdiction can be argued if such a case is “wrongly” referred to the CCMA?

In this specific instance, referring to the referral of unfair discrimination cases, it actually works exactly the other way around.

As mentioned, the act provides that unfair discrimination cases can be referred to a dispute resolution tribunal, but it only cites the CCMA.

Thus, if a case of unfair discrimination is referred to a dispute resolution tribunal that is not the CCMA, like a bargaining council, a point in limine can be raised to object against the jurisdiction of such bargaining council, as they do not enjoy jurisdiction over cases relating to unfair discrimination.


Article by: Johan van Dyk

CEO Dispute Resolution Official – Pretoria