Unfairly Retrenched? When to Refer Your Dispute to the Labour Court for Adjudication

Recently the Labour Court of South Africa has in the case of Weller v ABSA Bank Limited (JS850/20) [2021] ZALCJHB 207 (2 August 2021) had to deal with the question of when a dispute relating to operational requirements must be referred to the Labour Court for adjudication. In the aforementioned case, the Court was required to first determine whether Mr Charles William Joseph Weller (“the Employee”) was required to apply for condonation in respect of his statement of claim, and if so, whether condonation should be granted to the Employee.

Written By of Cowan-Harper-Madikizela Attorneys

Brief Factual Background 

In the Weller matter the Employee was retrenched on 11 February 2020 by ABSA Bank Limited (“the Bank”) in terms of the LRA. 

Aggrieved by his retrenchment, the Employee on 10 March 2020 referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). 

As a consequence of the COVID-19 pandemic and lockdown measures implemented by the South African Government, conciliation of the matter did not take place.

After numerous enquiries by the Employee’s attorneys to the CCMA regarding conciliation, the CCMA on 3 September 2020 issued the Employee with a certificate of non-resolution. The certificate of non-resolution stated that the dispute remained unresolved as of 9 April 2020. 

Issue and Main Arguments

On 18 November 2020, the Employee filed his statement of claim at the Labour Court and contends that he filed his statement of claim within a period of 90 days as contemplated in section 191(11) of the LRA.

The Bank on the other hand insisted that the Employee was required to file his statement of claim upon the expiry of the 30-day period from the date on which he referred his dispute to the CCMA for conciliation. 

The Bank in this regard argued that there was no need for the Employee to wait for a certificate of outcome to be issued prior to referring his dispute to the Labour Court. 

The Employee, however, held the firm belief that section 191(11)(a) makes a certificate of outcome a prerequisite for a referral of a dispute to the Labour Court for adjudication. 

Legislation 

Section 191(11)(a) of the LRA states, inter alia, that the referral of a dispute to the Labour Court for adjudication in terms of section 191(5)(b), must be made within 90 days after the council and/or commissioner has certified that the dispute remains unresolved.   

Relevant Case Law 

The Court considered the case of NUM v Hermic Exploration (Pty) Ltd (2003) 24 ILJ 787 (LAC) wherein the Labour Appeal Court (“LAC”) found, inter alia, that section 191(11)(a) is clear in its provision that the referral of a dismissal dispute must be made within 90 days after the council or the commissioner has certified that the dispute remains unresolved. 

The Court further examined the case of SAMWU obo Manentza v Ngwathe Local Municipality and Others (2015) 36 ILJ 2581 (LAC), which advanced an alternative interpretation from the Hermic judgment. 

In its judgment, the LAC held, inter alia, that section 191(5) of the LRA entitles an employee to refer an unresolved unfair dismissal or unfair labour practice dispute for adjudication to the Labour Court either (1) when a certificate of non-resolution of the dispute has been issued or (2) at the expiry of the 30-day period from either the CCMA or bargaining council’s receipt of the referral. 

The Court in the Manentza judgment accordingly emphasized the two jurisdictional events which are relevant prior to referring a dispute to the Labour Court for adjudication.

Analysis of Case Law and Legislation 

After considering the Manentza judgment, the Court held the view that the Employee was not entitled to elect to wait for a certificate of non-resolution before making a referral to the Labour Court. The Employee was entitled to refer his dispute to the Labour Court upon the expiry of the 30-day period from receipt of his referral by the CCMA.

The Court, in addition, found that limiting section 191(11)(a) to the issuing of a certificate of non-resolution would impede the primary object of the LRA which is the expeditious resolution of disputes. 

The Court accordingly concluded that that the 90-day period in section 191(11)(a) of the LRA does not only commence after the certificate of non-resolution is issued but may commence upon the expiry of the 30-day period contemplated in section 191(5) of the LRA, whichever event occurs first. 

As a result, the Court found it necessary for the Employee to apply for condonation for his late referral to the Labour Court and after considering the reasons tendered, his prospects of success and the interests of justice, the Court granted condonation for the late filing of the Employee’s statement of claim. 

Conclusion 

In conclusion, section 191(11) of the LRA, read together with section 191(5) of the LRA regulates the timeframes for referrals of unfair retrenchment disputes to the Labour Court, being (1) upon the expiry of the 30-day period from the date in which the Bargaining Council or the CCMA received the referral or (2) after the issuing of a certificate of non-resolution by the CCMA or Bargaining Council whichever event occurs first.

Gael Barrable

Gael Barrable
Associate Director of Employment

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