THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Reportable
Case No: J R642/20
In the matter between:
NATIONAL EDUCATION, HEALTH AND ALLIED
WORKERS UNION obo MAKHUBELE, E & 6 OTHERS Applicant
and
RAMALATSO, M.I. N.O First R espondent
GENERAL PUBLIC S ERVICE SECTORAL
BARGAINING COUNCIL (GPSSBC) Second Respondent
STATISTICS SOUTH AFRICA Third Respondent
Heard: 6 May 2025
Supplementary heads: 9 May 2025
Delivered: 13 May 2025
This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date of hand- down is deemed to be 1 3 May
2025.05.13
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JUDGMENT
MAKHURA , J
[1] This is a n application in terms of section 158(1)(g) of the Labour Relations Act
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(LRA) to review and set aside a jurisdictional ruling. The test applicable in this review
application is that of correctness - whether the commissioner’s ruling i s right or wrong,
and therefore the ruling is reviewable on objectively justifiable grounds.2
[2] The applicant also applies for condonation for the late delivery of the review
application, which is unopposed. Having considered the matter, the condonation application is granted.
[3] The facts leading to the jurisdictional ruling are common cause. The applicant,
the National Education, Health and Allied Workers ’ Union (NEHAWU) , acting on behalf
of the seven individual applicants who are its members , previously declared a dispute
and referred it to the Commission for Conciliation, Mediation and Arbitration (CCMA) for
conciliation. That dispute was one of equal pay for equal work in terms of section 6 of
the Employment Equity Act
3 (EEA) and was referred to the CCMA on 11 April 2018. The
applicant stated in this referral that the dispute arose on 11 April 2018.
1 Act 66 of 1995, as amended.
2 SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218 (LAC) ;
[2008] ZALAC 3 at paras 39 – 41; Zeuna – Starker BOP (Pty) Ltd v NUMSA [1998] 11 BLLR 1110 (LAC) ;
(1999) 20 ILJ 108 (LAC) at para 6; De Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and Others [2012] ZALAC 37; (2013) 34 ILJ 1427 (LAC) at para 2; South African
Municipal Workers Union obo Manentza v Ngwathe Local Municipality and Others [2015] ZALAC 26;
[2015] 9 BLLR 894 (LAC) at para 20; Ukweza Holdings (Pty) Ltd v Nyondo NO & others (2020) 41 ILJ
1354 (LAC); [2020] ZALAC 7 at para 12;
3 Act 55 of 1998, as amended.
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[4] Subsequent to an unsuccessful conciliation, the applicant referred the dispute to
this Court under case number JS691/18. In terms of the referral to this Court, the
individual applicants claimed that they should be remunerated at salary level 8, as
opposed to level 7 and that this constituted unfair discrimination on the arbitrary ground
of “unreasonableness” . The matter was unopposed and was enrolled for default
judgment application. On 19 July 2019, this Court dismissed the application for default
judgment. [5] Aggrieved, the applicant elected not to appeal the decision. Instead, it elected to
refer an unfair labour practice dispute to the General Publi c Service Sectoral Bargaining
Council (GPSSBC) , based on the same or similar set of facts and seeking substantially
the same or similar relief . The applicant det ailed the dispute procedures followed as:
‘Employer has failed and/or refused to provide a final, approved report as an outcome.
A grievance was lodged on or about 5 October 2016.
On 21 December 2017 respondent made a decision to appoint DPSA official to verify a fresh grading of the applicant employee positions. To date, no final report
from DPSA has been received.’
[6] This new dispute was referred on 16 October 2019. The applicant explained that
five of the individual applicants are employed as Data Processor Supervisors and two as Professional ICD 10 Coders. They are all employed on salary level 7. Their other colleagues, so the applicant contends, who are also Data Processor Supervisors and
Professional IDC 10 Coders, are employed on salary level 8. The applicant’s complain
is that the third respondent’s conduct:
‘in failing to accord [the individual applicants ] the same benefits granted to
employees on salary level 8 constitutes an unfair labour practice as defined in section 186(2)(a) in that [they] do not receive the same benefits as their
colleagues employed on the salary level 8, in particular relating to pension,
bonuses and medical aid contributions…’
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[7] At the proceedings before the GPSSBC, the third respondent contended that the
dispute was referred outside the 90- day period in terms of section 191(1)(b)(ii) of the
LRA, the applicant did not apply for condonation, and therefore the second respondent
had no jurisdiction to arbitrate the dispute. In addition, the third respondent raised a plea
of res judicata and argued that the same dispute arising from the same set of facts was
determined by the Labour Court.
[8] In response, t he applicant contended that the dispute was continuous and
therefore it was not necessary to apply for condonation. Reliance was placed on SA
Broadcasting Corporation Ltd v C ommission for C onciliation, Mediation & A rbitration &
others4 (SABC) , where the Labour Appeal Court (LAC) determined whether the conduct
of the employer was a single act or a continuous or repetitive act. The act complained of was the non- promotion of the employees. The LAC held that:
‘Hence in the present matter the date of dispute does not have to coincide with the date upon which the unfair labour practice / unfair discrimination commenced
because it is not a single act of discrimination [or an unfair labour practice] but one which is repeated monthly .’
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[9] On res judicata, the applicant contended that the cause of action in this dispute is
not the same as that which was referred to the CCMA for conciliation and later
determined by the Labour Court. The cause of action in the current dispute, so they
argued, is one of unfair labour dispute and the Labour Court determined an unfair
discrimination claim. For this, the applicant relied on Gcaba v Minister of Safety &
Security & others6 where the Constitutional Court held that the same conduct may
threaten or violate different constitutional rights and give rise to different causes of
action in law that may be pursued in different courts or fora.
[10] The commissioner determined the res judicata point without first determining
whether he had jurisdiction. He ruled that the second respondent had no powers or
4 (2010) 31 ILJ 592 (LAC) ; [2010] 3 BLLR 251 (LAC) .
5 Ibid at para 28.
6 (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) at para 53.
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jurisdiction to determine a dispute which had already been determined by the Labour
Court. It is clear that the commissioner conflated the issue of his competence to preside
over the dispute and the powers he had to make certain orders as the commissioner .
[11] The first question was whether the GPSSBC had jurisdiction to entertain the
matter in the sense that the dispute was referred outside the prescribed 90-day period.
It is only after the jurisdiction of the GPSSBC is confirmed that the issue of res judicat a,
which is a defence to a claim that is properly before the Court or tribunal, could be
entertained.
[12] The jurisdiction of the bargaining council is not an issue that falls to be finally
determined by the commissioner because that decision could be reviewed by this Court
on objectively justifiable grounds. The question before this Court remains whether the commissioner was correct in finding that the GPSSBC had jurisdiction to arbitrate the
dispute.
[13] The applicant had referred a dispute in terms of section 186(2) (a) of the LRA . In
terms of this provision, unfair labour practice is defined as “ any unfair act or omission
that arises between an employer and an employee” . The essence of the applicant’s
complaint of provision of benefits is promotion or a placement to a higher salary level. The applicant alleges t hat this dispute is continuous .
[14] Section 191(1) of the LRA regulates inter alia the time period within which
disputes about unfair act or omission may be referred to the bargaining councils or
CCMA. It provides that:
‘(a) If there is a dispute about the fairness of a dismissal, or a dispute about an
unfair labour practice, the dismissed employee or the employee alleging the
unfair labour practice may refer the dispute in writing to -
(i) a council, if the parties to the dispute fall within the registered scope of
that council ; or
(ii) the Commission, if no council has jurisdiction.
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(b) A referral in terms of paragraph (a) must be made within -
(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of
the employer making a final decision to dismiss or uphold the dismissal ;
(ii) 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. ’ (Emphasis added)
[15] Accordingly, a dispute about an unfair act or omission which is alleged to
constitute an unfair labour practice, as in the present case, must be referred within 90
days of the date of the act or omission or within 90 days of the date on which the
employee became aware of the act or omission. The dispute may be referred and
permitted outside the 90- day period on good cause shown.7
[16] During the hearing, the Court brought to the parties’ attention two decisions of
the LAC in Mngadi v Jenkin NO and others8 (Mngadi) and Amalungelo Workers’ Union
obo Mayisela and others v Commission for Conciliation, Mediation and Arbitration and
others9 (Amalungelo) , and directed them to file supplementary heads of argument
addressing the matter with specific reference to Amalungelo. The applicant has filed its
supplementary heads. The third respondent did not .
[17] In Mngadi , the employee referred an unfair discrimination dispute, where he
alleged that the unfair discrimination was continuous or repetitive. The LAC held that it
was unnecessary for Mngadi to apply for condonation because the unfair discrimination was perpetrated afresh on each occasion he was paid a lower salary compared to his subordinates and therefore, the unfair discrimination was continuous and repetitive on a monthly basis.
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7 Section 191(2) of the LRA.
8 (2021) 42 ILJ 768 (LAC); [2021] 3 BLLR 248 (LAC)
9 [2021] ZALAC 55; ( 2022) 43 ILJ 600 (LAC).
10 Mngadi at para 20.
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[18] In Amalungelo, the LAC was confronted with a dispute that was referred in terms
of section 198D(3)11 of the LRA. The LAC held that:
‘The “act or omission ” referred to in subsection (3) is clearly that which gave rise
to the dispute. And the dispute, as long as it is the same one, only has one initial
date on which it arose. The fact that the dispute is ongoing, in the sense that it
recurs after it arose, may be because it is either never resolved, or satisfactorily
resolved. But that does not imply that the parties, as it were, necessarily have a
new “act or omission” or “wrong” every time the same dispute erupts again.
The appellant employees’ reliance on what this court held in SABC and what the
Supreme Court of Appeal held in Lombo, or any of the decisions allegedly based
on them, is misplaced. The facts of those cases are distinguishable on their facts. There the courts were not dealing with the interpretation of s 198D of the LRA, or anything approximating the wording of that section, or s 198A, 198B or 198C, to which s 198D applies.
In any event, as explained in Eskom , not even all unfair labour practices which
occur on a monthly basis constitute ‘a continuing wrong’ as envisaged in SABC .
To use the language of s 198D, what would occur in certain instances is not the act or omission, for example, to promote (as in Eskom ) or not to employ persons
on a permanent basis (as alleged in this instance), but the consequences of the failure to promote or the failure to appoint on a permanent basis, which would constitute the concerned act or omission. However, in the light of the outcome of the analysis in this matter, it is not necessary to elaborate on that aspect.’
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[19] Insofar as the commissioner did not deal with the issue relating to the referral of
the dispute outside the 90 day period, the applicant submitted that it is not unreasonable
to infer that the commissioner believed that the dispute was continuous per the SABC
principle. It matters not what the commissioner may have believed and by implication
11 Section 198D(3) of the LRA . It provides that “A party to a dispute contemplated in subsection (1), other
than a dispute about a dismissal in terms of section 198A (4), may refer the dispute, in writing, to the
Commission or to the bargaining council, within six months after the act or omission concerned” .
12 Ibid at paras 20 - 22.
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found. His ruling remains reviewable on objectively justifiable grounds and this Court is
enjoined to consider whether the GPSSBC had jurisdiction to entertain the matter .
[20] The applicant submitted that the Court should follow SABC and find that the
unfair labour practice dispute is ongoing and repetitive monthly. Further, the applicant
urged this Court to consider the context of the dispute and to distinguish their dispute
with that which the LAC dealt with in Amalungelo. In the context of unfair labour
practice disputes, so the applicant submitted, the fact that unfair labour practice is
defined as “any unfair act or omission that arises” , means in this case that for each
month the employer provides the other employees on salary level 8 the benefits that are
more favourable to the individual applicants , an unfair act or omission arises.
[21] The third respondent had already addressed the issue in its original heads with
reference to this Court’s judgment in City of Cape Town v Nevin & others
13. In this
judgment , Lagrange J , dealing with an alleged unfair demotion dispute and with
reference to the Amalungelo judgment, held that:
‘Where a single, discrete omission or act by an employer is the foundation of an unfair labour practice claim it cannot be said to be continuous until that act or
omission is reversed, merely because it has ongoing consequences.’
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[22] In terms of Amalungelo, there can only be one initial date t hat gave rise to the
dispute. I must also add, in terms of the latter part of section 191(1)(b)(ii) of the LRA,
there can only be one date when the employee became aware of the act or omission
that allegedly constitutes the unfair labour practice and gave rise to the dispute.
[23] In casu , it is common cause that on 11 April 2018, the applicant referred an
unfair discrimination dispute to the CCMA relying on the same set of facts that served
before the GPSSBC. In that referral, the applicant expressly alleged that the dispute
arose on 11 April 2018. However, when the same set of facts were used to refer the
13 [2022] ZALCCT 29; [2022] 11 BLLR 1026 (LC).
14 Ibid at para 87
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unfair labour practice dispute 18 months after the first referral, the origin of the dispute
suddenly became continuous and was no longer 11 April 2018. [24] The sudden change of the date of dispute from 11 April 2018 to continuous was
a deliberate attempt to circumvent compliance with the 90 day period. The fact that the individual applicants sought backpay limited t o 90 days prior to the referral does not
bring the matter within the jurisdiction of the GPSSBC. The enquiry is – when did the act
or omission arise or when did the individual applicants become aware of the act or omission that they now allege constitutes unfair labour practice.
[25] The record before this Court shows that the individual applicants were aware of
the act or omission as early as 5 October 2016 when they lodged the grievance. The
current dispute was referred on 16 October 2019, three years after the individual applicants lodged the grievance.
[26] The applicant’s submission that each month the third respondent provides
benefits to the other employees that are more favourable to the individual applicants a
new act or omission arises is unsustainable. Section 186(2) defines unfair labour
practice as an act or omission that arises between an employer and an employee.
Section 191 regulates the period within which dispute s relating to the unfair act or
omission that allegedly constitutes unfair labour practice must be referred . As I have
found above, the individual applicants have been aware of the act or omission as early
as 5 October 2016, if not prior .
[27] Amalungelo was concerned primarily with the interpretation of the phrase after or
of the act or omission that allegedly constitutes unfair act . Section 198D(3) of the LRA
requires a dispute to be referred “ within six months after the act or omission concerned”.
Section 191(1) requires a dispute to be referred within “ 90 days of the date of the act or
omission ” or of the employee gaining knowledge of the alleged unfair act or omission.
The two provisions are the same or substantially the same. The LAC in Amalungelo
held:
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‘Section 198D does not treat ‘dispute’, and the ‘act or omission’ giving rise to the
dispute, as synonymous. Section 198D(3) does not provide that the dispute must
be referred within six months of it arising, but that the dispute must be referred within six months after ‘the act or omission concerned’. The section recognises that there is an act or omission (alleged or otherwise) that gave rise to, or preceded, the dispute. The crucial starting date of the time- limit is after the act or
omission concerned. It is thus important to establish that date in order to determine whether, in more general parlance, the ‘dispute’ was referred in time.’
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[28] Equally, in section 191(1) , a dispute and an act or omission are not synonymous .
The dispute must be referred within 90 days of the act or omission that allegedly
constitutes unfair labour practice, or within 90 days of the employee gaining knowledge of the act or omission that allegedly constitutes unfair labour practice.
[29] The act or omission in this case, according to the applicant, is the failure to
provide the individual applicants with the same benefits as their counterparts. However, this alleged failure to provide them with the level 8 benefits was brought about by the
third respondent’s alleged unfair act to place them on salary level 7 or omission to place
the individual applicants on salary level 8. That act or omission occurred, on the record
before this Court, on 5 October 2016 if not prior, or the individual applicants became
aware of that act or omission on or before 5 October 2016. The consequence of that act
or omission is that the individual applicants’ benefits, which they receive monthly, are limited to that of the employees on salary level 7. Therefore, this dispute relates to the
alleged unfair act or omission that occurred on or before 5 October 2016. That the
consequence of the act or omission manifests itself monthly does not mean that a new act or omission occurs monthly . There was only one discrete and separate act or
omission and the individual applicants became aware of it on before 5 October 2016.
The applicant was therefore required to apply for condonation for the late referral of its unfair labour practice dispute.
15 Amalungelo at para 23.
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[30] In my view, 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. A reasonable time in disputes referred in terms of the LRA
is determined with reference to section 191. Therefore, even a continuous dispute and/or a dispute with no specific timeframes, in my view, should be referred within a
reasonable period.
16 It would be untenable and against the purpose of resolving labour
disputes expeditiously to permit or enrol matters without enquiring into the delays , even
where the employee became aware of the issue or act or omission which forms the subject of the referral, years before referring the dispute.
[31] For the above reasons, the unfair labour practice dispute was referred outside
the prescribed 90 day period. The GPSSBC ha d no jurisdiction to determine the dispute
in the absence of a successful condonation application. Whilst the commissioner ’s
reasons are erroneous, his decision that the GPSSBC ha d no jurisdiction is correct . On
this basis, the application stands to be dismissed , and the GPSSBC and indeed this
Court has no jurisdiction to consider or entertain the third respondent’s plea of res judicata [32] In the premises, the following order is made:
Order
1. Condonation for the late delivery of the review application is granted.
2. The review application is dismissed.
3. There is no order as to costs.
16 See Health & Other Services Personnel Trade Union of SA on behalf of Tshambi v Department of
Health, Kwazulu- Natal (2016) 37 ILJ 1839 (LAC) ; [2016] 7 BLLR 649 (LAC), where the LAC discussed
the referral of interpretation or application disputes which is not subject to time frames. The LAC held that
the referral must still be made within a reasonable time and that section 191 is a yardstick to determine
the period of reasonableness.
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M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr. T Finck of Finck Attorneys
For the Third Respondent: Ms. L Pillay
Instructed by: Zarina Walele Attorneys