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:
- 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;
- 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
- 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.
