South Africa: Johannesburg Labour Court, Johannesburg

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JS 945/2011

In the matter between:

JUDGMENT

VAN NIEKERK J

[1] This matter was set down for trial. The applicant claims that she had been unfairly dismissed by the respondent. In its response to the statement of claim, the respondent raised two preliminary points. The first is a jurisdictional point to the effect that the matter was never conciliated.

[2] The applicant referred her unfair dismissal claim to the CCMA on 2 August 2011. On 2 September 2011, the CCMA issued a ruling to the effect that it had no jurisdiction, since the applicant had been dismissed in February 2010 and the dispute referred only in August 2011, far outside of the prescribed time limit. In the absence of an application to condone the late referral, the commissioner ruled that the referral was defective. The applicant was advised to re-refer the dispute and to apply for condonation. The applicant does not dispute that she failed to do so. In the circumstances, no conciliation meeting was ever convened, nor was any certificate of outcome ever issued. To the extent that the applicant disputes the commissioner’s finding as to the date of dismissal, the ruling was never the subject of any challenge by way of an application for review. The ruling accordingly stands.

[3] In National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and others (2015) 36 ILJ 363 (CC), the Constitutional Court recently said the following:

[34]      Where no certificate has been issued because there was, for example, no conciliation meeting, but a period of 30 days from the date when the council received the referral has elapsed, the statute conspicuously does not provide that the expiry of the 30 day period is sufficient proof that an attempt was made to conciliate the dispute. It is, in my view, in that situation that the Labour Court may, in terms of section 157 (4) (a), refuse to determine the dispute. This provision cannot assist in a case where the dispute was not even referred to conciliation. Section 157 (4) (a) underlines the importance the LRA places upon the need for attempts to be made to try and resolve the dispute through conciliation before resorting to other methods of resolution.

And further:

[40]      Referral for conciliation is indispensable. It is a precondition to the Labour Court’s jurisdiction over unfair dismissal disputes.

[4] It follows that in the absence of any valid referral to conciliation, this court has no jurisdiction to entertain the applicant’s dispute. In the circumstances, it is not necessary for me to consider the further matters raised by the respondent.

[5] Finally, in regard to costs, the interests of the law and fairness referred to in s 162 of the LRA are best served by each party bearing its own costs.

I make the following order:

1.    The applicant’s referral is dismissed for want of jurisdiction.

____________________________

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

APPEARANCES.

For the Applicant: Advocate C.L. Mabasa, instructed by Mkhize Attorneys

For the Respondent: Mr S. Snyman, Snyman Attorneys