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).

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.