Proposed Labour Law amendments being considered in 2026 may significantly expand the jurisdiction of the CCMA to hear harassment-related unfair discrimination disputes through arbitration.
At present, only certain harassment disputes, most notably sexual harassment matters, may proceed to arbitration at the CCMA. Other forms of harassment tied to unfair discrimination, such as harassment based on race, disability, religion, or gender, currently require referral to the Labour Court, which is a more formal, more costly, and time consuming.
This proposed change matters because an adverse finding in a harassment-related unfair discrimination dispute may affect an employer’s ability to obtain an Employment Equity (EE) Compliance Certificate. For employers that rely on public sector procurement, B-BBEE credentials, or vendor onboarding requirements, this turns harassment risk into a direct commercial risk.
Why Harassment Is Now a Procurement Risk
To qualify for an EE Compliance Certificate, employers must meet their employment equity obligations and must not have received an adverse finding relating to unfair discrimination within the preceding 12 months.
This means that a single adverse arbitration award arising from a harassment complaint could affect an employer’s eligibility for an EE Compliance Certificate, with potential consequences for State contracts, B-BBEE scoring, procurement opportunities, and reputational standing.
The practical message for employers is clear: harassment complaints can no longer be treated as isolated HR matters. They must be managed as part of the organisation’s broader compliance, governance, and procurement risk framework.
What Is an EE Compliance Certificate?
An EE Compliance Certificate is issued in terms of the Employment Equity Act 55 of 1998, as amended. It confirms that an employer is compliant with its obligations under the Act and is a requirement for designated employers seeking to contract with organs of State.
It may also be requested by private sector clients as part of supplier onboarding, tender processes, or B-BBEE-related compliance checks.
The Proposed CCMA Jurisdiction Amendment
The proposed 2026 amendments seek to allow employees to refer all harassment-related unfair discrimination disputes to the CCMA for arbitration, rather than being required to approach the Labour Court.
The practical effect would be to make these disputes easier, faster, and less costly to pursue. This may increase the number of harassment-related matters that result in formal arbitration awards, including awards capable of affecting an employer’s EE Compliance Certificate status.
These amendments are still proposed and have not yet been enacted. Employers should monitor the progress of the legislation and obtain legal advice once the final provisions are published.
Practical Steps for Employers
Employers, particularly designated employers in terms of the Employment Equity Act, should take the following steps now:
- Review and update harassment policies to ensure they cover all protected grounds, not only sexual harassment.
- Train employees and managers on harassment, reporting channels, and the consequences of non-compliance.
- Align disciplinary codes so that harassment and unfair discrimination are clearly classified as misconduct.
- Respond to complaints promptly, fairly, and consistently.
- Monitor any findings or awards that may affect EE Compliance Certificate eligibility.
Human Alliance, a Growthcurve Group company, supports employers with Employment Equity compliance and Labour Law consulting, including harassment awareness workshops, HR policy drafting, disciplinary code reviews, and the chairing of disciplinary hearings. Their service offering is structured to address both the equity compliance and employee relations dimensions of this risk landscape.
Conclusion
The proposed expansion of the CCMA’s jurisdiction over harassment-related unfair discrimination disputes is more than a procedural change. When viewed together with the EE Compliance Certificate framework, it creates a direct link between workplace conduct, compliance status, and procurement eligibility.
Employers who treat harassment complaints as isolated disciplinary issues are exposed. Those who align their policies, training, and enforcement practices now will be better positioned to protect both their compliance status and their commercial interests.
FAQ Section
Q1: What is an EE Compliance Certificate in South Africa?
An EE Compliance Certificate is issued under the Employment Equity Act 55 of 1998 and confirms that a designated employer is meeting its employment equity obligations. It is required for employers to be eligible to contract with organs of the State. In addition, it may be required for B-BBEE purposes and may also be requested by non-governmental clients as part of their vendor onboarding systems. An employer may be disqualified from obtaining the certificate where there is an adverse, unfair discrimination finding against it within the preceding 12 months. The certificate is accessible through the Department of Employment and Labour’s Employment Equity online portal
Q2: Can a CCMA harassment award affect my EE Compliance Certificate?
Yes. If the award includes an adverse finding relating to unfair discrimination or harassment, it may affect the employer’s ability to obtain an EE Compliance Certificate.
Q3: What harassment disputes can currently go to the CCMA?
At present, certain harassment disputes, most notably sexual harassment matters, may be referred to the CCMA for arbitration. Other harassment-related unfair discrimination disputes generally require referral to the Labour Court. The proposed 2026 amendments would extend CCMA jurisdiction to cover all such disputes.
Q4: Is an employer liable for harassment by one employee against another?
Yes, in certain circumstances. South African law recognises vicarious liability in the employment context. Where an employer fails to have a harassment policy in place, neglects to investigate complaints, or does not take appropriate disciplinary action, it may be held liable for harassment carried out by its employees. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace sets out the relevant obligations.
Q5: What should employers do to reduce harassment-related legal risk?
Employers should adopt and communicate a compliant harassment policy, provide training to employees and managers, ensure their disciplinary code addresses harassment, investigate complaints promptly and fairly, and take appropriate action where harassment is confirmed. These steps reduce both CCMA exposure and the risk of adverse findings affecting EE Compliance Certificate eligibility.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).