In Skinner v Ekapa Mining and Others [2025] 1 BLLR 60 (LC), Mr Skinner (the Employee) was employed by Ekapa Mining as an acting shift boss who supervised a team of 34 miners. The Employee was later found guilty and dismissed for sexually harassing a female subordinate and then victimising her after she refused to submit to his sexual advances.
At the disciplinary hearing, the complainant claimed that the Employee had sought her out during her rest breaks and, when she was alone, made sexual comments towards her. In this regard, he said to her ‘Ek lus jou’ and requested her to go to his house not far away from the workplace in exchange for money. After the complainant requested the Employee to stop, the Employee started victimising her. He questioned her whereabouts during her lunch breaks, required her to work in an unsafe area with electrical cables spread around, and interrogated the validity of a medical certificate she had submitted after falling ill. This treatment resulted in the complainant indulging in excessive drinking and contemplating resigning from her position. The complainant reported the incident following the victimisation.
The Employee, on the other hand, denied that there was any sexual harassment. He contended that the allegations had been fabricated because the complainant was a difficult employee to supervise. He claimed that the complainant was ‘always whining’, barely performed any work, failed to report to work regularly, and, after he had assigned unpaid leave to her due to unauthorised absence, the complainant threatened to ‘show him’.
Pursuant to his dismissal, the Employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). After considering the evidence provided, the arbitrator found that the complainant had no discernible reason to be dishonest about the Employee’s pattern of behaviour. To accept the Employee’s bare denial as truthful would require one to believe that the complainant, with unknown motives, had conspired to falsely accuse the Employee of serious misconduct. The arbitrator accordingly accepted the complainant’s version and held that the Employee’s dismissal was procedurally and substantively fair.
Disgruntled by the arbitrator’s ruling, the Employee took the arbitration award on review and contended, among other things, that the arbitrator had failed to apply the appropriate test in evaluating the evidence before him and had drawn inferences not supported by the facts. Consequently, the arbitrator reached a decision that could not have been reached by a reasonable decision-maker.
Having noted the settled test for review, the Labour Court found that the arbitrator was faced with mutually irreconcilable versions tendered by the complainant and the Employee, respectively. The test generally employed by the courts in resolving factual disputes is to make findings on –
(i) the credibility of the various factual witnesses;
(ii) the reliability of their evidence; and
(iii) the probabilities in the matter.
With regard to the allegation of sexual harassment, the court noted that while the arbitration award had not been elegantly written to follow the technique applied by the courts, the arbitrator had dealt with the credibility of the complainant and the Employee when he found that the complainant had no reason to be dishonest or fabricate her version of events for ‘unknown motives’. This demonstrated that the arbitrator was alive to the possibility that the complainant could have been biased. The record showed that the complainant’s evidence throughout the arbitration proceedings was consistent and unshaken. Further, the complainant’s delay in reporting the Employee’s conduct was explained by her: she had only thought this necessary when the Employee started victimising her. Faced with these facts, the arbitrator could not be criticised for finding that the Employee was guilty of sexual harassment.
Turning to the allegation of victimisation, the court noted that the evidence led before the arbitrator demonstrated that immediately after the Employee was stopped in his tracks by the complainant, the complainant’s problems mounted. The Employee had attempted to explain his sudden turnabout by portraying the complainant as the most difficult employee to supervise. However, the Employee could not produce any evidence to show that he had taken disciplinary action against the complainant. The court found that in the absence of any disciplinary action, it was difficult to fathom how credible and reliable the Employee’s version was.
Having considered the evidence, the court found that there was a causal link between the complainant’s rejection of the Employee’s sexual advances and his sudden change in how he treated her at the workplace. The court concluded that the Employee’s conduct was deplorable, offensive, inappropriate and violated the complainant’s dignity. The court was thus satisfied that the arbitrator considered the totality of the evidence adduced before him and reached a decision that was reasonable.
The review application was dismissed with no order as to costs.
In Industrial Oleo Chemical Products v National Union of Metalworkers of South Africa [2025] 1 BLLR 1 (LAC), several employees were retrenched by Industrial Olea Chemical Products (the Company) in a large-scale retrenchment exercise regulated in terms of s 189A of the Labour Relations Act 66 of 1995 (the LRA). After an urgent application was instituted in the Labour Court by the National Union of Metalworkers of South Africa (NUMSA) contending that the Company had failed to comply with a fair procedure, all the retrenched employees were reinstated. Thereafter, a new consultation process commenced in terms of which a facilitator was appointed. Following the completion of the consultation process, the employees were dismissed as a result of the Company’s operational requirements.
More than five months after the dismissals, NUMSA, on behalf of certain of the employees, referred an unfair dismissal dispute to the Labour Court (LC) in terms of s 189A(7)(b)(ii) of the LRA. The Company raised a preliminary issue that the LC lacked jurisdiction to determine the matter as NUMSA had failed to first refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council for conciliation. The LC dismissed the preliminary issue on the basis that s 189A(7)(b)(ii) did not require that the dispute first be referred to conciliation, and that such a referral in respect of dismissals arising from a facilitated s 189A retrenchment exercise was unnecessary. The Company appealed the LC’s finding.
On appeal, the issue before the Labour Appeal Court (LAC) was whether the LC has jurisdiction to adjudicate an unfair retrenchment dispute referred in terms of s 189A(7)(b)(ii) of the LRA when the dispute has not first been referred to the CCMA or the relevant bargaining council for conciliation.
In this regard, the Company contended that the LC erred in its finding on the basis that before an unfair dismissal dispute can be adjudicated it must be conciliated. It argued that facilitation and conciliation are distinct processes, with the former taking place before any termination of employment and the latter after termination. NUMSA, on the other hand, contended that the introduction of s 189A(7)(b)(ii) of the LRA allowed for an unfair dismissal dispute to be referred directly to the LC with no requirement that it first be referred to conciliation.
Section 189A(7) of the LRA applies to large-scale retrenchment processes in which a facilitator has been appointed and provides that once 60 days has elapsed after notice has been given to employees in terms of s 189(3), the employer may give notice to terminate the employees’ contracts of employment. Thereafter, the employees or their registered trade union may either –
(i) give notice of a strike; or
(ii) ‘refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11)’.
Section 191(11) of the LRA provides that the referral, ‘in terms of subsection (5)(b)’, of a dispute to the LC for adjudication must be made within 90 days after the council or commissioner has certified that the dispute remains unresolved. In turn, s 191(5)(b) provides that if a dispute has been certified as unresolved, or if 30 days or any further period as agreed between the parties has expired, the employee may refer the dispute to the LC for adjudication if the employee has alleged that the reason for dismissal is, inter alia, based on the employer’s operational requirements.
It is worth noting that shortly after the appeal was argued, the judgment of National Union of Metalworkers of South Africa obo Members v SAA Technical SOC Ltd [2024] JOL 66594 (LAC) (SAA Technical) was handed down by a differently constituted bench of the LAC. In SAA Technical, the court was faced with the same issue, namely the proper interpretation of
s 189A(7)(b)(ii) of the LRA, which regulates the referral to the LC of an unfair dismissal dispute after facilitated consultations in large-scale retrenchments have been concluded. It was found that the proper interpretation of the provisions is that, notwithstanding the facilitation process, a referral to conciliation is mandatory. In light of this judgment, both parties were provided with an opportunity to file further submissions on the matter, but they elected not to do so.
With reference to Constitutional Court authority, the LAC noted that a referral to conciliation is indispensable and a precondition to the LC’s jurisdiction over unfair dismissals. The purpose of s 191 of the LRA is to ensure that before parties to a dismissal or unfair labour practice dispute resort to legal action, an attempt is made to resolve the dispute between them. The pre-conditions before a dispute can be referred to the LC for adjudication set out in s 191(5) are that there must be a certificate of non-resolution, or 30 days must have passed since the referral of the dispute. If neither condition is fulfilled, there is no avenue through which an employee or trade union may bring the dispute to the LC for adjudication.
The court accordingly found that a party to a facilitated retrenchment consultation process must refer an unfair dismissal dispute to conciliation before a valid referral can take place to the LC for adjudication. The interpretation adopted in other judgments to the effect that s 189A(7)(b)(ii) of the LRA seeks to prevent a superfluous referral to conciliation disregards the functional distinction between facilitation and conciliation. This is so in that facilitation is concerned only with what transpires during the consultation process and not with what may happen after the consultations have been concluded.
For the reasons set out above, the LAC agreed with the judgment in SAA Technical and found that the proper interpretation of s 189A(7)(b)(ii) of the LRA is that, notwithstanding the facilitation process, the referral of an unfair dismissal dispute to conciliation is mandatory.
The appeal was upheld with each party to bear its own costs.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2025 (March) DR 57.
