Prior to the Employment Equity Amendment Act taking effect, section 10 of the Employment Equity Act held that a dispute regarding alleged unfair discrimination had to be referred to the CCMA within six months after the act or omission which constituted the alleged unfair discrimination, occurred.
The CCMA thereafter had to attempt to resolve the dispute through conciliation. Should endeavours to resolve the dispute be unsuccessful, the matter had to be referred to the Labour Court for adjudication.
The only exception to the above mentioned was where the parties to the dispute consented to the CCMA’s jurisdiction to arbitrate the matter.
The Amendment Act and more specifically the amendment to section 10, left the time period within which to refer the dispute regarding alleged unfair discrimination unchanged and the CCMA further still needs to attempt to resolve the dispute through conciliation in terms of this section.
The most significant amendment to this section is however that should the CCMA not be successful in resolving the dispute through conciliation, the matter may be referred to the CCMA for arbitration and the Labour Court therefore no longer enjoys exclusive jurisdiction to adjudicate over alleged unfair discrimination matters.
In order for the CCMA to have jurisdiction to arbitrate matters concerning alleged unfair discrimination the following criteria needs to be met:
(1) the employee must have alleged unfair discrimination on the grounds of sexual harassment;
(2) in any other case, the employee needs to earn less that the earnings threshold in terms of the Basic Conditions of Employment Act, which is currently R205 433,30 per annum; or
(3) all the parties to the dispute must consent to the CCMA arbitrating the dispute.
The Amendment Act further inserts a subsection to section 10 which provides that a person affected by an arbitrator’s award in an unfair discrimination matter is entitled to take the decision on appeal to the Labour Court and not on review.
Article by: Ilze Strydom
Dispute Resolution Official – Port Elizabeth