Section 191(1)(b)(iii) of the Labour Relations Act (LRA) 66 of 1995 states that an unfair labour practice dispute must be referred within 90 days of the date on which the alleged act or omission occurred, or when the employee became aware of it.

The key question before the Labour Court in NEHAWU obo Makhubele & others v Ramalatso NO & others was whether an act giving rise to an alleged unfair labour practice can be regarded as a continuous, repetitive wrong, or whether it constitutes a one-time event that needs to be referred within 90 days from the moment the employee becomes aware of it. 

Background:

The applicants lodged an equal pay for equal work dispute (under the Employment Equity Act 55 of 1998), due to two groups of employees, Data Processor Supervisors and Professional ICD 10 Coders that were allegedly performing similar work but earning salaries on different levels (Level 7 and Level 8). Their application to the Labour Court was unopposed and dismissed by default judgement. 

Unsatisfied with the outcome, the Applicants approached the General Public Service Sectoral Bargaining Council (GPSSBC), by referring an unfair labour practice dispute seeking a similar relief. The commissioner at the GPSSBC therefore had to make a ruling on whether an application for condonation was required and whether the Respondent’s plea of res judicata (that the matter had already been decided) should be ruled.  

The applicants argued that the alleged unfair labour practice was ongoing, as they were paid unequal salaries monthly. Therefore, although they became aware of the disparity in 2016, they believed the unequal pay constituted a repetitive act, renewing the 90-day referral period every month. On this basis, they claimed their referral was not late and that an application for condonation was not necessary. 

The commissioner made a ruling on the res judicata point, before determining whether the bargaining council had jurisdiction, based on the matter of an application for condonation. The matter ultimately proceeded to the Labour Court. 

Labour Court’s Findings:  

The Court held that an unfair labour practice, as defined in section 186(2) of the LRA, occurs at a specific point in time, even if its consequences continue to be felt. It cannot be treated as a continuous or repetitive act simply because the effects persist. 

The Court made its position clear; 

“The time to hide behind the alleged “continuous” or “repetitive” nature of the dispute has come to an end. Therefore, whether continuous or non-continuous, labour disputes must be referred within a reasonable time because they are not only inherently urgent in nature but also because delays may cause irremediable prejudice on the part of the other party.”

The Court ruled that the Applicants were outside of the 90-day referral period and therefore an application for condonation was indeed required. Due to the absence of a successful application for condonation, the Bargaining Council lacked jurisdiction to hear the matter. Therefore, although the commissioner’s ruling was erroneous, his ruling regarding jurisdiction was upheld. 

Condonation Requirements:   

An Applicant can apply for condonation for a late referral but needs to show good cause as to why their late referral must be condoned. This involves that the Applicant must convince the CCMA/Bargaining Council of reasonable prospects of success and valid, fully explained reasons for lateness, inclusive of the prejudice that they may face should the matter not be heard.  If good cause is not shown, the application for condonation stands to be refused and the matter will not be heard. 

Key Takeaway:

Lateness is a potent procedural defence. Crucially, the ongoing effects of a past act cannot be interpreted as a new, continuous, or repetitive unfair labour practice. Disputes are often only referred once the employment relationship deteriorates, making it essential for employers to understand statutory referral periods and raise procedural objections where appropriate. 

Written by Johan van Heerden