Technical points and the true nature of a dispute – The ConCourt weighs in (again)

The issue of having the true nature of a dispute conciliated has come before South Africa’s highest courts on a number of occasions in recent years. Once again, the Constitutional Court has been called to decide on this issue in Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others [2020] ZACC 8.

In this matter, employees of Ngululu Bulk Carriers (Pty) Ltd (“Ngululu”) engaged in an unprotected strike and as a consequence some 476 employees were dismissed. Naturally, the employees referred an unfair dismissal dispute to the National Bargaining Council for the Road Freight and Logistics Industry (“NBCRFLI”). An attempt at conciliation was unsuccessful and a certificate of non-resolution was issued.

At that stage, Ngululu was re-employing certain of the dismissed employees, but none of those who had been re-employed were members of the Association of Mineworkers and Construction Union (“AMCU”). AMCU considered the selective re-employment to be a further dismissal, as defined in the Labour Relations Act 66 of 1995 (“the LRA”) and referred a second dismissal dispute to the NBCRFLI. Ngululu objected to the NBCRFLI’s jurisdiction to conciliate the dispute, which application was dismissed by the NBCRFLI. A certificate of non-resolution was issued in respect of this dispute as well. Dissatisfied, Ngululu reviewed the ruling in the Labour Court.

At the same time, AMCU initiated unfair dismissal claims arising from the strike dismissal in the Labour Court. AMCU alleged that its members were dismissed for their affiliation to it and accordingly those dismissals were automatically unfair in terms of section 187(1)(f) of the LRA. Ngululu defended the claim and raised a preliminary point to the effect that the Labour Court lacked jurisdiction to determine the automatically unfair dismissal dispute as that dispute had not been conciliated. Furthermore, Ngululu raised the point of lis alibi pendens. In this regard, Ngululu alleged that the dispute in terms of the second claim was already before the Labour Court in terms of its review application. The Labour Court agreed with both of Ngululu’s points and dismissed AMCU’s claims.

The Labour Appeal Court subsequently dismissed AMCU’s petition for leave to appeal and thus AMCU approached the Constitutional Court. The Constitutional Court confirmed that the Labour Court has jurisdiction to determine an unfair dismissal dispute only in circumstances where it has been conciliated. The Court pointed out that what is referred to conciliation is a ‘dispute’ and not the cause of action or claims which may arise from that particular dispute. This much was evident from the fact that an employee may only become aware of the reason for their dismissal at conciliation.

The Constitutional Court referred to National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd (2015) 36 ILJ 363 (CC) and National Union of Metalworkers & others v Driveline Technologies (Pty) Ltd & another (2000) 21 ILJ 142 (LAC) where it was found that a certificate of non-resolution is sufficient proof that an attempt to resolve the dispute has been made. The Court reiterated its sentiments from Intervalve and found that an unfair dismissal dispute had been conciliated notwithstanding that the reason for that dismissal may render the dismissal automatically unfair. By extension, the Court reaffirmed the finding of Driveline that a differing reason for a dispute does not constitute a dispute in itself. The Constitutional Court accordingly found that the Labour Court had erred in finding that the automatically unfair dismissal claim had not been conciliated.

In considering the lis alibi pendens argument, the Constitutional Court restated the three requirements to comply with the defence, being pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter. The Court found that in casu only one of the three abovementioned factors had been satisfied, being that the dispute was between the same parties. In this regard, Ngululu’s claim constituted an attack on the jurisdictional ruling made by the NBCRFLI and the certificate of non-resolution issued by it, whereas AMCU’s claims dealt with the unfairness of the dismissal of its members. Accordingly, the causes of action and subject matters in the two matters were distinctly different. Therefore, the Labour Court’s finding in this regard was also set aside.

This case is a reminder that our industrial relations system permits both flexibility and multiplicity of claims, subject to certain limitations. Employers should see the judgment as a cautionary tale against the taking of technical points where there is no solid foundation for doing so.

Written by Neil Coetzer and Courtney Wingfield
of Cowan-Harper-Madikizela Attorneys

Neil Coetzer of Cowan-Harper-Madikizela Attorneys,
Courtney Wingfield of Cowan-Harper-Madikizela Attorneys