An essential step in challenging the fairness of layoffs

Under section 189A(7)(b)(ii), where a facilitator is appointed and 60 days have passed from the date of issue of the notice under section 189(3 ), a registered trade union or employees who have received notice of the termination of their employment may “refer a dispute regarding the existence of good cause for the dismissal to the Labor Court in terms of section 191 (11) “.

The proper interpretation of this article has been the subject of some controversy over the years, with some authorities indicating that a referral to conciliation was not necessary, given that the parties would have already benefited from the facilitation process .

With this authority, following a facilitated consultation process, the National Union of Metalworkers of South Africa (Numsa) referred an unfair dismissal dispute to the Labor Court for judgment on behalf of its members, without first submitting the matter to conciliation. . SAA Technical challenged this decision, arguing that after a careful reading of the relevant provisions, a referral to conciliation was necessary and that, on this basis, the Labor Court did not have jurisdiction to hear the claim.

The findings of the labor court

The Employment Tribunal considered several sections of the LRA and upheld SAA Technical’s argument, concluding that:

• Article 191(1) provides that recourse to conciliation constitutes the first step in resolving disputes relating to unfair dismissal. If conciliation fails, section 191(5) allows for arbitration or referral to the labor court, depending on the nature of the dismissal.

• Section 191(5)(b) allows employees to refer a dispute to the Employment Tribunal for determination where the reason for dismissal was based on the “operational requirements of the employer”. The LRA does not differentiate between section 189 and section 189A dismissals (i.e. large-scale dismissals) as grounds for dismissal for the purposes of a court referral, and nor does it provide for separate exemptions.

• Common law presumes that statutes do not contain invalid or moot provisions. Section 189A(7)(b)(ii) specifically refers to section 191(11). The legislator wanted to provide that the referral to the labor court had to be made in accordance with article 191, paragraph 11. This article prescribes a period of 90 days for submitting the dispute to the labor court and provides that this referral be made after that the Conciliation, Mediation or Arbitration Commission or the Negotiating Council has certified that the dispute is still not resolved. If the legislature had intended to allow a direct referral to the employment tribunal following a facilitation process, it would not have referred to section 191(11).

• Facilitation and conciliation are distinct processes. Facilitation takes place before dismissal and focuses on compliance with Article 189(3), while conciliation takes place after dismissal and addresses the fairness of the dismissal with a view to resolving the dismissal dispute. A new cause of action arises after termination, requiring conciliation.

The Court concluded that a referral to conciliation is necessary after facilitation before going to the employment tribunal for a decision.

BAC agreement

The LAC agreed with the Labor Court’s interpretation, emphasizing the general principle that “anything brought before the Labor Court in relation to unfair dismissal must first go through conciliation”. The Court held that where this standard does not apply, the law should make this clear unambiguously and unequivocally.

As for conflicting case law, the LAC rejected the interpretations of the law in these cases. He further confirmed that neither the decisions in Numsa on behalf of members v Bell Equipment Co SA (Pty) Ltd neither Edcon v Steenkamp and others engaged him. THE Bell equipment the case, on which Numsa had relied, was a decision of the Labor Court, and the relevant statement of the LAC in Edcon supporting Numsa’s position was clearly an obiter remark.

To remember

The LAC decision clarifies that, despite the facilitation process, a referral to conciliation is a necessary step before challenging the substantial fairness of the dismissals in the Employment Tribunal under section 189A(7)(b)( ii) the LRA.