It is the unfairness of a dismissal that is referred to conciliation, and not the reason for the dismissal. In resolving unfair dismissal disputes, the courts will look at substance over form.

The court in Association of Mineworkers and Construction Union v Ngululu Bulk Carriers (Pty) Limited (in liquidation) and Others found that where AMCU had referred an unfair dismissal dispute to the relevant bargaining council, the Labour Court had jurisdiction to adjudicate the subsequent referral of an automatically unfair dismissal dispute. The difference between the two categories of dispute, broadly speaking, is that the latter is a more egregious form of dismissal, over which the Labour Court has exclusive jurisdiction.

In January 2016, 476 Ngululu employees engaged in an unprotected strike and were consequently dismissed. This group included members of AMCU. AMCU referred an unfair dismissal dispute to conciliation. The bargaining council issued a certificate of non-resolution. In the interim, Ngululu started re-employing dismissed employees, none of whom were AMCU members.

AMCU referred a second dispute to the bargaining council for conciliation. The union referred the second dispute as an automatically unfair dismissal dispute. It contended that the dismissal was automatically unfair because the selective re-employment constituted discrimination on the basis of union affiliation.  Ngululu disputed that the council had jurisdiction to conciliate the second dispute. The council dismissed the objection to jurisdiction and the conciliation went ahead. It was unsuccessful and a certificate of non-resolution was issued. Ngululu instituted a review application in the Labour Court. AMCU opposed the review application.

The union, on behalf of its members, then referred an automatically unfair dismissal dispute to the Labour Court. In doing so, AMCU relied on the certificate of outcome issued in the first referral (that is, the referral of an unfair dismissal dispute). However, the legal argument was identical to the basis of the second referral to the bargaining council, that is, selective re-employment on the basis of union affiliation. Ngululu opposed the action. It took two preliminary points. First, the Labour Court had no jurisdiction to adjudicate the matter because it had not been referred to conciliation as an automatically unfair dismissal dispute. Second, Ngululu claimed that the subject matter of the referral to the Labour Court was the same as the subject matter of its pending review application. The Labour Court upheld both of Ngululu’s claims.

On appeal, the Constitutional Court held:

  • It is the unfairness of a dismissal that is referred to conciliation, and not the reason for the dismissal. While an employee may not always know the reasons for dismissal, the employer does.
  • If the conciliation fails, the employee may either refer the dispute to arbitration or to adjudication before the Labour Court, depending on what the employee asserts is the reason for the dismissal. The fairness of the dismissal remains in dispute in either event.
  • In terms of s157(4)(a) of the Labour Relations Act 1995, the Labour Court may refuse to exercise its jurisdiction if it is not satisfied that there has been an attempt to resolve the dispute through conciliation. However, s157(4)(b) provides that a certificate of outcome is sufficient proof that an attempt has been made to conciliate a dispute. Given that the fairness of the dismissal had been referred to conciliation and a certificate of outcome had been issued, s157(4)(a) did not apply.
  • Ngululu’s point that the same matter, between the same parties (known as lis alibi pendens) was already before the court in the review application, did not hold water. This is because the review application pertained to the bargaining council’s jurisdiction, while the referral pertained to the fairness of the employees’ dismissal. In the absence of the issue being the same, this point was dismissed.

The Constitutional Court referred the matter back to the Labour Court to adjudicate the merits of the dismissal. The judgment highlights the importance of substance over form. Employers must carefully consider taking technical points in employment matters.