Workplace Discrimination: Which Complaint Route Applies?

Key takeaways

• An employee or job applicant complaining about an employment policy or practice will usually start with the Employment Equity Act route.
• A discriminatory dismissal falls under the Labour Relations Act dismissal route, not section 10 of the Employment Equity Act.
• Unfair treatment is not automatically unfair discrimination. The alleged prohibited ground and its connection to the conduct matter.
• The Equality Act is generally excluded to the extent that the Employment Equity Act applies; the Equality Court is not a fallback appeal forum for an employment dispute.

1. Capture five route facts before filing

Start with facts, not a forum name.

1. Relationship and status

Record whether the affected person is an employee, job applicant, former employee, independent contractor, volunteer, supplier, client or another participant in the world of work. Section 9 of the Employment Equity Act extends sections 6 to 8 to applicants for employment. The Act's definition of employee excludes an independent contractor, although a contract label does not necessarily settle a fact-sensitive worker-status dispute.

2. Respondent and actor

Identify the employing legal entity, the person who acted, and anyone who made or approved the decision. A group brand, payroll company and operating employer may not be the same entity. A colleague's conduct, a manager's decision and an institutional policy can create different factual and liability questions.

3. Act, omission or policy

Write down what happened in neutral terms. Examples include refusal to hire, different pay, exclusion from training, failure to accommodate, harassment, a promotion decision, discipline, demotion or dismissal. Avoid starting with a conclusion such as “the company violated my rights”.

4. Alleged ground and connection

Identify why the treatment is alleged to be discriminatory. Section 6 of the Employment Equity Act lists grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. It also covers another arbitrary ground, but the burden of proof differs.

5. Outcome and dates

Record the incident date, when the person learned of it, every internal complaint, the final decision, dismissal date, appeal outcome and current date. A continuing pattern may raise difficult timing questions. Do not assume that the newest incident automatically revives every older one.

2. Match the facts to the likely route

The table is a classification aid, not a jurisdiction ruling. A single history can contain more than one cause of action. Preserve all plausible deadlines and obtain advice before abandoning one route.

The CCMA glossary explains the institution's conciliation and arbitration roles. The unfair-discrimination-at-work glossary provides the core equality concept.

3. What counts as workplace discrimination?

The Employment Equity Act prohibits direct or indirect unfair discrimination in an employment policy or practice. That term is broad. It includes recruitment and selection, appointment, job classification and grading, remuneration and benefits, terms and conditions, job assignments, the working environment and facilities, training, performance evaluation, promotion, transfer, demotion and discipline short of dismissal.

The route still requires more than an unfair experience. A useful first analysis asks:

• What decision, rule, pattern or conduct is being challenged?
• Which listed ground, or which other arbitrary ground, is alleged?
• What facts connect the ground to the different treatment or harmful effect?
• Was the rule applied directly to the person, or did a neutral-looking rule create a disproportionate disadvantage?
• Who is a relevant comparator, if comparison helps, and are the situations materially alike?
• Does the employer rely on a lawful affirmative-action measure, an inherent job requirement or another justification?

Section 11 sets different evidential burdens. Once discrimination on a listed ground is alleged, the employer bears the statutory burden described in section 11(1). For another arbitrary ground, the complainant must prove that the conduct is not rational, amounts to discrimination and is unfair. The Constitutional Court's decision in Mbana v Shepstone & Wylie explains why the alleged ground and the applicable burden must not be blurred.

Harassment linked to one or more prohibited grounds is a form of unfair discrimination under section 6(3). The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace gives guidance on workplace scope, prevention and response. Rude management, conflict or bullying can be serious without automatically establishing Employment Equity Act discrimination; the prohibited-ground connection and all surrounding facts still require analysis.

Different terms or pay for the same, substantially the same or work of equal value can also fall within section 6(4) when the difference is directly or indirectly based on a prohibited ground. The job content, responsibility, working conditions, qualifications and employer explanation need evidence rather than a job-title comparison alone.

4. The Employment Equity Act complaint route

Section 10 applies to disputes about alleged unfair discrimination under Chapter II, except unfair dismissal. Before referral, the referring party must show that a reasonable attempt was made to resolve the dispute. An internal grievance can help identify the complaint and give the employer an opportunity to respond, but the statutory deadline must still be protected.

The written referral is ordinarily due within six months after the alleged act or omission. The referring party must satisfy the service requirement, and the CCMA then attempts conciliation. A late referral can be considered for condonation on good cause; condonation is discretionary, so it is not a substitute for timely filing.

If conciliation fails, section 10 distinguishes the next forum:

• either party may refer the dispute to the Labour Court;
• an employee may refer a sexual-harassment dispute to CCMA arbitration;
• an employee below the earnings threshold determined under the Basic Conditions of Employment Act may refer another qualifying discrimination dispute to arbitration; and
• the parties may consent to CCMA arbitration.

The threshold changes over time. Check the current determination and the person's remuneration rather than copying an old amount from an article. Do not assume that every discrimination referral will end in a CCMA arbitration award.

The CCMA's current public guidance identifies LRA Form 7.11 and its online application platform for referral. Use the current form and instructions, serve the other party as required, keep transmission evidence and confirm whether a bargaining council has jurisdiction before relying on the CCMA route.

5. A discriminatory dismissal uses the Labour Relations Act

Section 10(1) of the Employment Equity Act expressly excludes unfair-dismissal disputes. Under section 187(1)(f) of the Labour Relations Act, a dismissal may be automatically unfair if the reason is unfair discrimination on a prohibited or arbitrary ground. A dismissal because an employee made a protected disclosure may also engage the automatically unfair dismissal provisions.

The practical consequence is urgent: section 191 generally gives 30 days to refer a dismissal dispute to the competent council or the CCMA. The period runs from the dismissal or, if later, the employer's final decision to dismiss or uphold the dismissal. If conciliation does not resolve an automatically unfair dismissal, the dispute ordinarily proceeds to the Labour Court.

Do not turn every dismissal involving a protected characteristic into an automatically unfair dismissal claim. The reason for dismissal is a fact question. Preserve the dismissal letter, charges, hearing record, internal appeal, performance or operational records, decision-maker communications, comparator evidence and the employer's stated reasons.

The unfair-dismissal glossary explains the broader concept and why the reason for dismissal matters. If the outcome is dismissal, protect the 30-day route even while the discrimination analysis continues.

6. Separate unfair labour practices and retaliation

Section 186(2) of the Labour Relations Act defines particular unfair labour practices. These include unfair conduct relating to promotion, demotion, probation, training or benefits; unfair suspension or disciplinary action short of dismissal; and an occupational detriment short of dismissal imposed because of a protected disclosure.

Some facts can support both an unfair-labour-practice argument and a discrimination argument. A person passed over for promotion, for example, may allege an unfair process, discrimination on a listed ground, or both. The legal elements, burdens, time limits and eventual forums are not identical.

Section 51 of the Employment Equity Act prohibits prejudice against a person for exercising rights under that Act. Retaliation after an equality complaint may therefore require an Employment Equity Act analysis as well as an assessment of dismissal, unfair labour practice, protected disclosure, victimisation or urgent relief.

Do not wait for an internal retaliation investigation to finish before checking the 30-day, 90-day or six-month periods. Record each later act separately, including its date, decision-maker, stated reason and connection to the earlier complaint.

7. When the Equality Court may be the correct route

The Equality Act, commonly called PEPUDA, provides a broad civil framework against unfair discrimination, hate speech and harassment. Its section 5(3) boundary is decisive: the Act does not apply to a person to whom, and to the extent that, the Employment Equity Act applies.

That wording requires a careful assessment of both the person and the conduct. A customer, volunteer, independent contractor or member of the public may be outside the Employment Equity Act for the relevant complaint. Conduct by a business that is not an employment policy or practice may also raise a different equality question. Worker status and mixed relationships can be disputed, so a contract heading alone should not determine the route.

All Magistrates' Courts are designated as Equality Courts. The Department of Justice states that there is no court fee to lodge an Equality Court complaint and that legal representation is not a prerequisite. The clerk can provide Form 2 and procedural assistance. Form 2 asks for the incident, affected right, parties, witnesses, supporting documents, impact and requested outcome.

The Equality Court can grant a wide range of orders where the statutory requirements are proved, and it can refer a matter to another appropriate institution. It should not be described as a second attempt after a missed or unsuccessful employment referral.

The recent Equality Court decision in Behari v Eskom Holdings SOC Ltd applied the section 5(3) boundary to a workplace demotion and disability-discrimination complaint and found that the Equality Court lacked jurisdiction. Pinto v Dimension Data similarly explains the Employment Equity Act route and PEPUDA exclusion. Those judgments illustrate the route question; they do not decide whether every incident connected to work falls outside the Equality Court.

8. What a SAHRC complaint can and cannot do

The SAHRC accepts complaints from a person or organisation acting for themselves, another person or the public interest. Its procedure asks for the complainant's details, the nature, date and place of the alleged violation, the parties, previous resolution attempts, urgency and supporting documents.

The Commission may assess jurisdiction, investigate, facilitate resolution, mediate, assist with proceedings or refer a complaint to an institution better placed to deal with it. A workplace complaint may therefore be redirected to the employment-law system where that route applies.

The SAHRC's 2023 Complaints Handling Procedures do not make three years an automatic absolute cutoff. A complaint older than three years receives a further just-and-reasonable assessment that considers matters such as seriousness, available evidence, redress and prescription.

A SAHRC complaint is not the same as an Employment Equity Act referral, an Equality Court case or a Labour Court claim. Unless qualified advice confirms otherwise for the specific matter, do not assume that sending a complaint to the Commission suspends a CCMA, council or court deadline.

9. Prepare one evidence bundle that preserves every route

Build a dated, indexed bundle before memories and system records change:

• identity and contact details of the affected person and respondent entities;
• employment contract, job application, offer, job description, policies and collective agreement;
• the challenged rule, decision, communication or conduct in its original format;
• a chronology separating each incident, complaint, response and outcome;
• the alleged ground and facts said to connect it to the treatment;
• relevant comparator information, including material similarities and differences;
• performance, pay, promotion, training, discipline or accommodation records;
• internal grievance, harassment report, protected disclosure and employer response;
• witness names and a note of what each person directly observed;
• dismissal, appeal or final-decision records where applicable;
• evidence of financial loss, health impact or another claimed consequence; and
• a deadline sheet showing six months, 90 days, 30 days and any court or Commission dates under review.

Keep original files, message exports and metadata where possible. Do not edit screenshots, access another person's account, secretly obtain protected records without advice or circulate health and identity information beyond those who need it.

10. Write an internal complaint that preserves the legal issue

An internal complaint should be specific enough to investigate. State:

1. what happened, when and where;
2. who acted or decided;
3. the employment policy, practice or conduct challenged;
4. the ground believed to be connected to the treatment, and the facts supporting that connection;
5. the impact and any immediate safety or accommodation need;
6. the records and witnesses already available; and
7. the practical action requested, such as preservation of records, an investigation, interim separation or a written decision.

For alleged harassment by an employee, section 60 of the Employment Equity Act makes prompt notice to the employer important. Once alleged conduct is brought to the employer's attention, the Act requires consultation and necessary steps; the employer's potential liability and defence remain fact-specific. Do not promise that notice alone proves liability.

Request written acknowledgment and preserve the submitted version. Internal resolution may be valuable, but keep external referral dates visible. The labour-law hub is the approved route for finding further labour-law information and support.

11. Get urgent advice when route errors could be irreversible

Seek prompt, case-specific help where:

• dismissal has happened or is imminent;
• a six-month, 90-day or 30-day period may be close or already missed;
• the person's status as employee, applicant or contractor is disputed;
• the alleged conduct combines discrimination, harassment, dismissal, protected disclosure or another statutory claim;
• urgent safety, medical, accommodation, confidentiality or retaliation concerns exist;
• the respondent entity or bargaining-council jurisdiction is uncertain;
• interim relief may be needed;
• a settlement, waiver, arbitration award or previous court order exists; or
• the evidence includes confidential employee, medical or third-party records.

The labour-lawyer directory can help a reader identify the relevant type of practitioner. A lawyer should verify the facts, current legislation, jurisdiction, time calculation, relief and procedural rules before a live filing.

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