Article 28/2022

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?


In AMCU v Ngulu Bulk Carriers (Pty) Ltd (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC), the constitutional court adopted the following approach:

  • in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd (2015) 36 ILJ 363 (CC); 2015 (2) BCLR 182 (CC, at paragraph [33], the constitutional court said:

‘And the Driveline minority’s approach to section 157(4) seems wrong to me. Section 157(4)(a) confers upon the labour court the power to refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. Section 157(4)(b) then provides that a certificate issued by a commissioner that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.  This means that, in a case where a certificate of non-resolution has been issued at the end of the conciliation process, the labour court may not, on the strength of section 157(4)(a), decline to determine the dispute.  This is because section 157(4)(b) says that the certificate is sufficient proof that an attempt was made.’

  • the flaw in the labour court’s reasoning stems from its characterisation of an automatically unfair dismissal as a dispute separate from an unfair dismissal dispute that was referred to conciliation.  That court overlooked the fundamental issue which is that what was referred to conciliation was the unfairness of the dismissal, regardless of whether the unfairness concerned was automatic or otherwise.  And that it is not reasons for a dismissal which must be referred to conciliation but the unfairness of the dismissal
  • in this regard, National Union of Metalworkers of SA v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC); (2000) 21 ILJ 142 (LAC); [2000] 1 BLLR 20 (LAC), at paragraphs [40] to [41], shows that a reason for a dismissal does not itself constitute a dispute.  In that matter the labour appeal court declared:

‘In my view, a reading of section 191(1)–(5) leaves one in no doubt that the phrase “operational requirements” as used in the Act does no more than give a reason for a dismissal the fairness of which may be in dispute between the parties as contemplated at the beginning of section 191(1) where the Act refers to “a dispute about the fairness of a dismissal”.  It does not itself constitute a dispute on its own.  The same applies to a situation where an employee alleges or seeks to allege that his dismissal constitutes an automatically unfair dismissal.  This refers simply to a reason for dismissal the fairness of which may be the subject of a dispute between the parties as contemplated in section 191(1) of the Act.

It follows, therefore, from what I have said above in regard to a dismissal for operational requirements that also the reference to a dismissal as an automatically unfair dismissal is nothing more than giving a reason for the dismissal.  That this is the case is confirmed by a reading of the provisions of section 187(1) which deal with automatically unfair dismissals.  It is clear from section 187(1) that whether a dismissal is automatically unfair depends on the reason for the dismissal.  Of course, once the reason for dismissal has been established, this may have various implications in terms of the Act which may differ from the implications which would flow from the establishment of another reason as the reason for dismissal.’

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.