Article 30/2021

Labour Edge

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that, when an unfair dismissal dispute is pursued, it does not mean, by implication, that a challenge of an earlier final written warning may be pursued as part of such unfair dismissal dispute?

The labour court recently, in De Kock, approached this issue as follows:

  1. the clear difference in the nature of the dispute, where it comes to an unfair dismissal dispute and an unfair labour practice dispute, has a consequence. This consequence is that each has its own distinct dispute resolution process. It follows that an unfair dismissal dispute must be pursued as such, and an unfair labour practice dispute must also be pursued as such. It cannot be legitimately contended that, when an unfair dismissal dispute is pursued by way of a referral to the CCMA, it would also, by implication, include a challenge of an earlier final written warning, even if that final written warning may have a bearing on the dismissal. The final written warning must be specifically challenged as an unfair labour practice. This must be done by a proper referral to conciliation served on the employer, following an unsuccessful conciliation at the CCMA;
  2. in National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC); [2015] 2 BCLR 182 (CC), at paragraph [47], the constitutional court said:

‘In determining the objectives of s191, none of its provisions can be ignored. They must all be taken into account. That includes the requirement in s 191(3) that the employee must satisfy the council that a copy of the referral has been served ‘on the employer’. The general purpose of s191 provides the background against which the specific purpose of s191(3) must be understood. The subsection ensures that the employer party to a dismissal or unfair labour practice dispute is informed of the referral. The obvious objective is to enable the employer to participate in the conciliation proceedings, and, if they fail, to gird itself for the conflict that may follow’ (see also Mphahlele v Ephraim Mogale Municipality (2018) 39 ILJ 879 (LC), at paragraph [8]); and

  1. in the absence of a final written warning being challenged as an unfair labour practice, it simply cannot be challenged in the course of subsequent unfair dismissal proceedings. Even under the former LRA (Act 28 of 1956), the erstwhile industrial court recognised the necessity to distinguish between the challenge of a final written warning and a dismissal, and accepted that a final written warning cannot be challenged in subsequent litigation if it had not been specifically challenged earlier.

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

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?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?