Promotion of constitutional rights and fair labour practices

August 1st, 2018

September and Others v CMI Business Enterprise CC 2018 (4) BCLR 483 (CC)

By Njabulo Kubheka

The applicants in this case were Theo September,  Dean September and  Roland Paulsen who were all employed by CMI Business Enterprise CC (the respondent). The applicants resigned as workers of the respondent and alleged that the respondent had made their working conditions intolerable. They alleged that they were subjected to racial discrimination in the form of physical, verbal and mental abuse.

After terminating their employment, the applicants referred their matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). The applicants based their claim on two grounds. The first was based on unfair labour practice and the other was based on unfair discrimination in terms of the Employment Equity Act 55 of 1998 (the EEA). The CCMA held that the applicants were constructively dismissed and further held that the issue of unfair dismissal remained unresolved and referred the matter to the Labour Court (LC).

In the LC the applicants filed their statement of material facts where they submitted a list of incidents that led to their resignations. The issue before the LC was whether it had jurisdiction, which in turn begged the question of whether constructive dismissal based on unfair discrimination had been conciliated before referral to it. The LC considered the evidence by the applicants as to what emerged during the CCMA proceedings. The LC on the issue of constructive dismissal held that it had jurisdiction as the dispute had been conciliated in the CCMA.

The respondent then appealed to the Labour Appeal Court (LAC). The main issue that had to be considered by the LAC was whether constructive dismissal had been conciliated before the matter was referred to the LC. In its reasoning, the LAC relied on the decision of the National Union of Metalworkers of South Africa and Others v Driveline 2000 (4) SA 645 (LAC) and held that ‘where the real issue was conciliated, the employee’s statement of case can be amended to broaden the issue’s characterisation. However, where the issue was never referred to conciliation at all, the Labour Court does not have jurisdiction to determine the dispute’. The LAC noted that the dispute of unfair dismissal was conciliated. It further held that the LC made an error as the evidence supported the conclusion that the referral was for unfair discrimination and that the applicants did not consider themselves to have been dismissed. The LAC held that the LC should have held that it had no jurisdiction as it was not entitled to venture beyond the referral form to determine what was conciliated.

The applicants appealed to the Constitutional Court (CC). The CC began by setting out the functions of the commissioner as set out by s 135(3) of the Labour Relations Act 66 of 1995 (LRA). The CC further held that the LAC failed to consider the purpose and context of the LRA and the dispute resolution mechanisms for which it provides and only relied on the referral form and the certificate of outcome. The CC further held that LAC’s interpretation is inconsistent with the jurisprudence of the CC in that it was narrowly textual and was a legalistic approach. The court further held that because the LAC adopted a legalistic approach it did not achieve the objects of the Constitution, the fundamental rights provided by s 23 of the Constitution and the promotion of the effective resolution of labour disputes.


One of the crucial visions of our democratic era is to create a fair working environment, which recognises the rights of employees and prevents them from being subjected to unfair labour practices. In order to achieve this goal, we have adopted the Constitution, the LRA, the EEA and other laws, as our tools to achieve this objective. Among other values, included in our Constitution, is human dignity, the advancement of human rights and freedom and supremacy of the Constitution. When interpreting the Bill of Rights, the courts are required to promote the values that trigger an open and democratic society founded on human dignity, equality and freedom. The LRA requires that when interpreting its provisions there must be compliance with the Constitution. It is, therefore, clear that the LRA and the Constitution aims at rectifying the power imbalance between the employers and the employees in the workplace.

From the facts of this case it is clear that the appellants rights were violated, particularly their rights to human dignity, equality and fair labour practices. I submit that the CC came to the right conclusion, because the lenient approach adopted by the court gives effect to the founding values of the Constitution and it promotes fair labour practice, as enshrined by the Constitution. It is trite that the provisions of any statute are to be given their ordinary meaning whenever they are being interpreted. However, where the ordinary meaning will lead to a violation of constitutional rights, the courts are required to adopt a less restrictive approach, which will give effect to the provisions of the Constitution. In this case, requiring strict compliance with s 191 of the LRA as held by the LAC would lead to conflict with some of the founding values of the Constitution and the purpose of the LRA. The CC was correct in concluding that the LC had jurisdiction to adjudicate on the issue of constructive dismissal, because the CCMA had conciliated this issue. By contrast, the approach of the LAC impedes the courts from referring to evidence outside of the certificate of outcome and referral form, and thereby limiting the commissioner’s duties, particularly the duty to identify the nature of the dispute.

Njabulo Kubheka BA LLB (UKZN) is a candidate attorney at Venns Attorneys in Pietermaritzburg.

This article was first published in De Rebus in 2018 (Aug) DR 45.