In SABC Ltd v CCMA [2009] ZALAC 13, [2010] 3 BLLR 251 ; (2010) ILJ 592 (dated 18.11.2009), Waglay ADJP held that the 4 grievants, represented by the CWU, were not out of time when the alleged dispute was referred to the CCMA some 7 years after it was alleged to have started.   Patel JA and Sangoni AJA agreed with the judgment.

The crisp issue for decision related to the correct interpretation of LRA s191(1)(b)(ii) which provides that the referral of an alleged unfair labour practice dispute must be made to the CCMA within “90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence”.   It is distressing to record that in paras [25] & [26] of the judgment not only does the LAC erroneously refer to s191(5) of the LRA but also erroneously uses the word “institutes” instead of “constitutes” when quoting from the LRA.

The Chemical Workers Union (CWU) referred a dispute to the CCMA on 8 September 2005 on behalf of 4 grievants alleging that the SABC’s failure or refusal to promote or upgrade them in 1998 constituted an unfair labour practice as defined in s186(2)(a) of the Labour Relations Act 66 of 1995; alternatively, discrimination as set out in s6 of the Employment Equity Act 55 of 1998 on the grounds of qualification and expertise.   It was further alleged that the SABC had promoted or upgraded 3 artisans from a salary scale of 403 to a salary scale of 300 as part of a skills retention plan while the 4 grievants, who performed the same or similar work and have similar or better qualifications, were not similarly promoted or upgraded.

Waglay ADJP is reported to have stated in para [27]:

“While an unfair labour practice/unfair discrimination may consist of a single act it may also be continuous, continuing or repetitive.   For example where an employer selects an employee on the basis of race to be awarded a once off bonus this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal the unfair labour practice commences and ends at a given time.   But, where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive.   The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages.   Each time the employer pays one of its employees more than the other he is evincing continued discrimination” [underlining added].