Understanding Jurisdiction and Retrospective Law in South African Labour Law

Background of the Case

On 26 May 2014, an employee submitted a grievance to Eskom, claiming unfair discrimination. The company declined the grievance.

Shortly after, on 1 August 2014, changes to the Employment Equity Act (EEA) came into effect. Two key sections were introduced:

• Section 6(4): The “equal pay for equal work” provision.
• Section 10(6)(b): This allowed discrimination cases to be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) – if both parties agreed.

On 14 August 2014, the union referred the dispute to the CCMA, and the matter went to conciliation on 3 September 2014. Both the union and Eskom agreed in writing to take the matter to arbitration through the CCMA.

However, just before the scheduled arbitration, Eskom raised a legal objection. They argued that since the grievance arose before the new laws took effect (on 1 August), the CCMA didn’t have the authority  or jurisdiction to arbitrate the case. They claimed the law could not be applied retrospectively (i.e., applied to past events).

What the Commissioner Decided

The CCMA Commissioner ruled that the relevant law is the one that was in force when the case was referred not when the issue first arose.

Since the dispute was referred to the CCMA on 14 August 2014, after the EEA amendments took effect, the Commissioner held that the CCMA did have jurisdiction.

Additionally, the Commissioner found that the union had made a reasonable attempt to resolve the dispute before referring it to arbitration, which the law requires.

What the Labour Court Said on Review

When Eskom challenged the decision in court, the Labour Court upheld the Commissioner’s ruling. The court explained the difference between substantive law (which defines rights) and procedural law (which governs how legal cases are handled).

Here are the court’s key points:

1. Timing Matters for Procedure

The court made a useful distinction:

• If new legal procedures come into effect before a case is filed, the new procedure applies.
• If a case is filed before the changes take effect, the old procedure still applies.

In this case, the referral to the CCMA was made after the law changed so the new procedures applied.

2. Jurisdiction Depends on Filing Date, Not Event Date

The law in force when the action is taken (such as filing a dispute) determines the procedure. Even if the actual workplace issue happened earlier, it’s the date of referral that matters.

3. Agreement Between Parties Was Key

Under the new version of the EEA, parties can agree to refer a discrimination dispute to the CCMA, which is exactly what happened here. That meant the CCMA had the legal authority to hear the matter.

Final Outcome

The Labour Court dismissed Eskom’s challenge and confirmed the CCMA had jurisdiction to arbitrate the case.

Why This Matters

This case is important for both employers and employees. It confirms that:

• The law applied to a dispute depends on when the action is filed, not when the incident occurred.
• Changes in procedural law, such as how and where a case is heard, can apply to new cases, even if the underlying events happened earlier.
• When both parties agree, the CCMA can hear certain discrimination disputes, even if they occurred before the law change.

In Conclusion

If you’re involved in a workplace dispute, it’s important to know:

• The timing of your referral or filing can determine what procedures apply.
• Legal amendments may apply to your case even if the issue happened before the change, as long as you act after the change takes effect.
• Agreements between employer and employee can help streamline how disputes are handled, particularly through the CCMA.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.