Sections 189A(7) and 191(11) of the Labour Relations Act 66 of 1995 (LRA) were before the court in this interlocutory application.
Section 189A(7) which reads:
‘If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189(3) –
(a) the employer may give notice to terminate the contracts of employment in accordance with section 37(1) of the Basic Conditions of Employment Act [75 of 1997]; and
(b) a registered trade union or the employees who have received notice of termination may … –
(i) …
(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), which states:
‘The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.’
The respondent employer, embarked on an s 189A process on 28 April 2021 and engaged a facilitator appointed by the Commission for Conciliation, Mediation and Arbitration (CCMA). The process ended on 1 October 2021, whereafter, on 18 October 2021, the employer handed out notices of dismissal to 1 193 of the applicant union’s members.
On 16 January 2022, the union filed a statement of claim at the Labour Court (LC) challenging the substantive fairness of its members dismissals.
The employer raised the point that the court did not have jurisdiction to hear the claim, absent the union first referring the dispute to the CCMA for conciliation and after a certificate of non-resolution was issued. It was common cause that the union did not first refer a dispute to the CCMA for conciliation before filing its statement of claim.
In support of its argument, the respondent referred the court to the authorities, which stated that in general, conciliation was a jurisdictional pre-requisite for the LC to have jurisdiction to adjudicate a claim.
More on point with the argument raised, the respondent referred the court to South African Equity Union obo Van Wyk and 100 members v Lodestone Confectionary (Pty) Ltd t/a Candy Tops (unreported case no S19/16, 26-5-2017) and Catering Pleasure and Food Workers Union v National Brands Ltd (2007) 28 ILJ 1064 (LC).
In both these judgments, the employees were dismissed pursuant to an s 189A process, facilitated by a CCMA commissioner. The respective employees, like the union in casu, filed a statement of claim at the LC without first referring a dispute to the CCMA for conciliation. The court on both instances upheld the employer’s argument that it lacked jurisdiction to hear the claim, as the jurisdictional pre-requisite (that being a referral first to the CCMA and a certificate being issued), had not been met.
On the other hand, the union firstly drew a distinction between s 189A(7) and (8).
When a facilitator is appointed, then in terms of s 189A(7), there is no requirement to refer a dispute for conciliation. However, when a facilitator is not appointed, then s 189A(8) does require a referral to the CCMA for conciliation. In addition, the union argued that there was no benefit in conciliation as the facilitation process and conciliation process aims to achieves similar objectives.
The union relied extensively on the decision in National Union of Metalworkers of SA on behalf of Members and Others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC), where the LC on that occasion interpreted s 189A(7)(b)(ii) to mean that employees do not have to refer a dispute for conciliation post facilitation and can instead refer the matter directly to the LC for adjudication. On this point the court in Bell Equipment held:
‘In arriving at this conclusion I take into account two important factors. The first is that in the event of the appointment of a facilitator, the parties benefit from the facilitation process which is not identical to but not dissimilar from the conciliation process. What is more, a period of 60 days must elapse from the date on which the s 189(3) notice is given before an employer may give notice to terminate. Secondly, subsection (7)(b)(i) does not require a trade union or the employees who have received notice of termination to refer a dispute to the CCMA or the bargaining council for conciliation and for a certificate of non-resolution to be issued should the employees wish to give notice of a proposed strike in terms of s 64(1)(b) of the LRA. I can see no reason why the legislature in drafting subsection (7)(b)(ii) would require employees to refer disputes to the CCMA or a bargaining council if they wish to refer such disputes to the Labour Court.
It must be accepted, however, that the reference to s 191(11) in subsection (7)(b)(ii) serves a purpose. … It appears to me that what the legislature intended was to provide that the referral of the dispute to the Labour Court for adjudication must take place within 90 days, that being the time referred to in s 191(11)(a). I do, however, realise that the section provides for the referral to be made within 90 days after the CCMA or bargaining council has certified that the dispute remains unresolved. When then should the 90-day period be calculated from in terms of s 189A(7)(b)(ii)? The only logical answer is that it must be calculated from the date of the notice of termination.’
Having noted the conflicting judgments and interpreted the relevant sections of the LRA, the court followed the authorities which held that conciliation is a jurisdictional pre-requisite for a referral, in terms of s 189A(7), to the LC. In doing so, the court reasoning was as follows:
Firstly, in accordance with the general scheme of s 191, a dispute challenging the substantive fairness of a dismissal due to the employer’s operational requirements; must first be referred to the CCMA or bargaining council within 30 days of dismissal and thereafter to the LC within 90 days of the certificate being issued.
Secondly, the Constitutional Court in National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) found that all dismissal disputes must be first conciliated before the CCMA or LC has jurisdiction to adjudicate the dispute.
Thirdly, the section itself dictates that a referral to the LC, must be made in terms of s 191(11), which states that the referral must be made within 90 days of the CCMA or bargaining council issuing the certificate of non-resolution. On this point, the court, on application of the principles of interpretation, rejected the union’s argument that reference to s 191(11) in s 189A(7), was due to a ‘lack of drafting elegance’.
Fourthly, on the argument that facilitation and conciliation serve similar objectives, the court held:
‘In my view there is no merit in this argument. The facilitation process during a section 189A retrenchment process is a pre-dismissal process and it is focussed on compliance with and serving the requirements of section 189(3). The facilitation process does not concern itself with an unfair dismissal dispute, as the process happens prior to dismissal. Conciliation on the other hand happens post dismissal, when the fairness of a dismissal is challenged with a view to resolve the dismissal dispute.
When employees who were dismissed, after a section 189A process was followed, seek to challenge the fairness of their dismissal, a fresh cause of action arises. The dispute arose post dismissal and was certainly not considered or conciliated during the pre-dismissal facilitation process. It is a fresh dispute that must be conciliated.’
The respondent’s jurisdictional point was upheld with no order as to costs.
Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).
This article was first published in De Rebus in 2023 (Sep) DR 39.
