Article 02/2021

Labour Edge

Under which circumstances is conciliation by the CCMA or the relevant bargaining council an indispensable precondition to the labour court’s jurisdiction over unfair dismissal disputes?


  1. In National Union of Metalworkers of SA v lntervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC); [2015] 2 BCLR 182 (CC), the constitutional court recently said the following:

‘[34]   Where no certificate has been issued because there was, for example, no conciliation meeting, but a period of 30 days from the date when the council received the referral has elapsed, the statute conspicuously does not provide that the expiry of the 30-day period is sufficient proof that an attempt was made to conciliate the dispute. It is, in my view, in that situation that the Labour Court may, in terms of section 157(4)(a), refuse to determine the dispute. This provision cannot assist in a case where the dispute was not even referred to conciliation. Section 157(4)(a) underlines the importance the LRA places upon the need for attempts to be made to try and resolve the dispute through conciliation before resorting to other methods of resolution.

[40]    Referral for conciliation is indispensable.  It is a precondition to the Labour Court’s jurisdiction over unfair dismissal disputes.’

  1. The above viewpoint was recently applied by Van Niekerk J in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC).

What are the five differences between a claim in terms of the LRA and the BCEA, recently identified by the labour appeal court, in Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 30 SALLR 165 (LAC)?

A claim in the labour court is for the payment of damages arising from a breach of contract, whereas a claim before the CCMA or the bargaining council is for reinstatement, alternatively, compensation. How did the labour appeal court recently, in Archer v Public School – Pinelands High School and Others, deal with these two different claims?

A claimant has a potential claim for enforcement of an LRA right (enforceable only in a labour forum) as well as a potential claim for enforcement of a right falling outside the LRA (enforceable either in the high court or labour court).  These claims can be pursued simultaneously or sequentially.  What is the basis of such approach, recently confirmed by the labour appeal court in Archer v Public School – Pinelands High School and Others (2019) 30 SALLR 28 (LAC)?