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Section 191(1)(a) of the Labour Relations Act 66 of 1995 (LRA) is very clear that in the event of a dispute about the fairness of a dismissal or about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute either to the Bargaining Council or to the Commission for Conciliation, Mediation and Arbitration (CCMA), whichever the case might be. The provisions of s 191(1)(a) require no further elaboration.
For purposes of the subject matter, s 191(1)(b) is more relevant and is the one that necessitated that I wrote this article. Section 191(1)(b)(i), in relation to dismissal disputes, provides that the referral of the dispute must be made within ‘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’. Section 191(1)(b)(ii) in relation to unfair labour practice disputes, provides that the referral of the dispute must be made 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’ (of the unfair labour practice).
From the above-mentioned, it is crystal clear that legislation prescribes time frames within which dismissal and unfair labour practice disputes must be referred. The use of the word ‘must’ in s 191(1)(b) dictates that the time frames prescribed for the referral of the disputes are peremptory. Failure to refer these disputes within their respective prescribed time frames would render the referral to be out of time and therefore, a condonation application would have to be made as permitted in terms of s 191(2).
The Main Collective Agreement concluded by parties to the South African Local Government Bargaining Council (the SALGBC), which at the date of writing this article, was applicable, contains in clause 13 thereof, a Grievance Procedure, which is deemed to be a condition of service (for employees within the local government sector). This Grievance Procedure has a three steps process. These steps are basically as follows:
If the grievance could still not be resolved to the satisfaction of the aggrieved party at step three, sub-clause 13.4.5 provides that ‘that party may refer the grievance to the council for adjudication provided that a dispute has been declared and the party is entitled in law to declare such a dispute’. For some reason, sub-clause 13.4.5 is the only sub-clause under clause 13, which refers to ‘the aggrieved party’, and not to the ‘employee’ like the sub-clauses preceding it. However, this distinction is not relevant for purposes of this article.
The adopted Constitution of the SALGBC, which goes hand in hand with the Main Collective Agreement, provides under clause 12.3 thereof, as follows:
‘12.3 A referral of a dispute to the Council for Conciliation must be made within the time period prescribed in the Act, or any other legislation that confers jurisdiction upon the Bargaining Council provided that in the case of a dispute about the fairness of a dismissal the dismissed employee must refer the dispute within 30 (thirty) days from the date on which internal procedures are exhausted or within 90 (ninety) days from the date of dismissal if internal procedures have not been exhausted by that time’ (my italics).
The provisions of clause 12.3 of the Constitution are very specific that a dispute must be referred within the time-period prescribed in the Act, which in this case, is the LRA. In terms of the above provision, it is only a dispute about dismissal, which the Constitution of the SALGBC requires that must first be dealt with through internal processes (the grievance procedure) and must be referred to the SALGBC within 30 days after the internal processes have been exhausted. In my view, this provision is in contrast to the provisions of s 191 of the LRA. The previous dispute referral form of the SALGBC also provided in the column with ‘Date of Referral’, that dismissal disputes must be referred within 30 days from the date internal procedures are exhausted, or within 90 days from the date of dismissal if internal procedures have not been exhausted. The form currently in use provides that unfair labour practice disputes must be referred within 90 days, and unfair dismissals within 30 days (as prescribed in terms of s 191 of the LRA).
Conversely, the previous form contained no requirement that internal processes must first be exhausted when it comes to referral of an unfair labour practice dispute. If indeed it was intended that even an unfair labour practice dispute had to first go through internal processes before it could be referred to the SALGBC, surely the Constitution of the SALGBC would have been very specific in that regard, as it did with dismissal disputes. The fact that there is no such provision, and the fact that the requirement for referral of dismissal disputes to a grievance procedure has now been removed from the SALGBC forms, confirm that it was not a requirement for disputes other than dismissal disputes to first be referred to a grievance procedure before they could be referred to the SALGBC, and also that it is no longer a requirement for a dismissal dispute to be referred to a grievance procedure first. This similarly applies to unfair labour practice disputes. In fact, the new dispute referral form is very specific that an unfair labour practice or unfair dismissal case, which is referred outside the statutory 90 and 30 days respectively must be accompanied by a condonation application. This simply confirms that it is not a requirement that unfair labour practice and unfair dismissal disputes must first be referred to a grievance procedure and all steps be exhausted before they can be referred to the bargaining council.
In IMATU obo Jeffery Khoza v Greater Giyani Local Municipality (case no LPD051909, 7-10-2019), the employer had raised a point in limine to the effect that the unfair labour practice dispute was referred to the SALGBC prematurely in that the employee did not lodge a grievance and exhaust all the three steps, before referring the dispute to the SALGBC. The Commissioner ruled that there is no requirement that the employee must first exhaust internal remedies before referring an unfair labour dispute to the SALGBC. In IMATU obo Mitch Matthys and Others v City of Tshwane Metropolitan Municipality (case no GMD031809, 26-9-2019), the Commissioner also ruled that there was no requirement for a party to first exhaust internal processes before referring an unfair labour practice to the SALGBC. In the above case, the Commissioner at para 20 stated the following, inter alia:
‘The LRA does not state that an unfair labour practice must be referred once the parties have exhausted internal processes. That would, to all intents and purposes, defeat the intent and spirit of the LRA. As the unfair dismissal and unfair labour practices are disputes of rights, nothing prevents an aggrieved person to refer the dispute to the SALGBC before having dealt with it at the workplace’.
Based on what I have stated in the preceding paragraphs, I fully agree with the Arbitrator’s findings in the above-mentioned two cases. There are, however, other Commissioners of the SALGBC who are of the view that employees within the local government sector can only refer a dispute to the SALGBC once they have exhausted the grievance procedure. Some of those Commissioners who share this view rely on the decision in City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union obo Matsheka and Others (LC) (unreported case no JR214/2016, 14-12-2017) (Sedile AJ).
In this case, the material facts were briefly that although an aggrieved employee lodged an internal (formal) grievance before referring her dispute to the SALGBC and went through the step one and step two processes of the grievance, she however, did not proceed to step three once her grievance remained unresolved at step two. In a review application launched by the employer, Sedile AJ found that because the employee did not follow the three step process, the dispute was, therefore, referred to the bargaining council prematurely. Sedile AJ at para 21 stated the following, inter alia:
‘The second and third respondents were obliged and bound to apply the provisions of the [Main Collective Agreement] and which they failed to adhere to. The third respondent is obliged to exhaust all the processes as prescribed by the [Main Collective Agreement] before any dispute can be adjudicated by the second respondent’.
In my view, the court’s finding to the effect that the grievance procedure must be exhausted before a dispute could be referred to the SALGBC goes completely against the provisions of s 191 of the LRA, as well as against the provisions of clause 12.3 of the SALGBC Constitution. To the extent that the decision in the City of Johannesburg case is to the effect that an employee cannot refer their dispute to the bargaining council before exhausting the grievance procedure, then I submit, with respect, that based on what I have stated at the beginning of this article, this case was wrongly decided.
Mpho Manyikana BProc (Univen) PG Dip Labour Law (UJ) LLM (Labour Law) (Unisa) is a Senior Labour Relations Officer at Independent Municipal and Allied Trade Union (IMATU) in Pretoria.
This article was first published in De Rebus in 2022 (Aug) DR 13.
