Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others (CCT15/18) [2020] ZACC 8

SCHINDLERS CLE

CASE TITLE

Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others (CCT15/18) [2020] ZACC 8 (6 May 2020)

CATEGORY

Labour Law 

BACKGROUND

AND

SUMMARY

In this matter, the Constitutional Court (the “Court”) had to consider two preliminary points which had succeeded in the Labour Court. The first being, whether the Labour Court had jurisdiction to adjudicate the automatically unfair dismissal which had been referred to conciliation. This required the Court to contemplate the proper interpretation of section 191 of the Labour Relations Act 66 of 1995 (“LRA”). The second point was whether the common law defence of lis alibi pendens (same action pending in other proceedings), which had been raised by the First Respondent in the Labour Court, could succeed in the circumstances. 

During 2016, employees of the First Respondent (Ngululu Bulk Carriers (Pty) Limited), who were also members of the First Applicant (Association of Mine Workers and Construction Union (AMCU)), participated in an unprotected strike. The employees were dismissed and the the First Applicant referred an unfair dismissal dispute to the relevant bargaining council. The dispute was conciliated without success and a certificate of non-resolution was issued by the relevant council (“first dismissal”). During this time, the First Respondent was re-employing some of the dismissed employees, however, not a single member of the First Applicant was re-employed. The First Applicant contended that this constituted a further unfair dismissal in terms of section 186(1)(d) of the LRA and proceeded to refer the matter to the same bargaining council (“second dismissal”). The First Respondent argued that the bargaining council did not have jurisdiction to conciliate the second dismissal. The bargaining council rejected this argument and conciliation proceeded. Following this, a certificate of non-resolution was issued by the bargaining council and the First Respondent instituted review proceedings in the Labour Court.

The First Applicant then approached the Labour Court and initiated the claims for unfair dismissal. With regard to the first dismissal, the First Respondent contended that, since the claim was now based on the assertion that the dismissal was automatically unfair, the Labour Court lacked jurisdiction because an automatically unfair dispute had not been referred to conciliation. The Labour Court held the view that a referral to conciliation of an unfair dismissal dispute does not include an automatically unfair dismissal. Proceeding from this premise, the Labour Court concluded that the claim of an automatically unfair dismissal needed to be conciliated first before that Court could entertain it.

With regard to the second dismissal, the First Respondent raised the lis alibi pendens defence and contended that the matter was the subject-matter of its review application which was, at the time, pending before the Labour Court.

HELD

Section 191 of the LRA requires dismissed employees to refer disputes about the fairness of a dismissal to conciliation. The Court held that 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. The Court further held that it is not the reasons for a dismissal which must be referred to conciliation but rather the unfairness of the dismissal. Accordingly, the Court concluded that the Labour Court erred in holding that it had no jurisdiction to adjudicate the automatically unfair dismissal claim.

It was further held that for a lis alibi pendens defence to succeed, the First Respondent had to show that there is a pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter. The review application brought by the First Respondent was directed at challenging the bargaining council’s ruling and the certificate of non-resolution.  It had nothing to do with the unfairness of the second dismissal.  It follows that the causes of action in the two proceedings were different.  The court held that the First Respondent had failed to establish the defence of lis alibi pendens.

The Court set aside the order made by the Labour Court and remitted the matter for determination of the merits. Costs were awarded in favour of the Applicant.

VALUE:

In the case of an unfair dismissal being referred to conciliation, it is the unfairness of the dismissal that is being referred, regardless of whether the unfairness concerned was automatic or otherwise. It is not reasons for a dismissal which must be referred to conciliation but rather the unfairness of the dismissal.

FOCUS KEYWORDS

Labour Relations Act, section 191, jurisdiction, unfair dismissal, automatically unfair dismissal, lis alibi pendens

TAGS

Labour Law, unfair dismissal, automatically unfair dismissal, jurisdiction

META DESCRIPTION

In the case of an unfair dismissal being referred to conciliation, it is the unfairness of the dismissal that is being referred, regardless of whether the unfairness concerned was automatic or otherwise. It is not reasons for a dismissal which must be referred to conciliation but rather the unfairness of the dismissal.