Case  CCT 15/18
[2020] ZACC 08

Hearing Date:  06 Februaryr 2020

Judgement Date:  06 May 2020

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On  Wednesday, 6 May 2010 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Labour Court and an order of the Labour Appeal Court refusing the applicants’ petition for leave to appeal. This application concerned the proper interpretation of section 191 of the Labour Relations Act 66 of 1995 (LRA) together with whether lis alibi pendens (pending legal action) was properly raised in relation to the dismissal based on selective re-employment when what was pending was a review of a ruling on jurisdiction and the validity of the certificate of non-resolution.

During January 2016, Ngululu employees, including members of AMCU, were engaged in an alleged unprotected strike. When those workers failed to return to work, Ngululu dismissed 476 employees as a result of their participation in the strike. An unfair dismissal dispute was immediately referred to the relevant bargaining council by AMCU (first dismissal dispute). On 9 March 2016, the dispute was conciliated without success and a certificate of non-resolution was issued. Ngululu then re-employed some of the dismissed employees. However, not a single member of AMCU was among those who were re-employed. AMCU and its members considered the selective re-employment to be a further dismissal to which AMCU members were subjected.

On 5 April 2016, they referred that dismissal to the same bargaining council for conciliation (second dismissal dispute). They contended that the selective re-employment constituted an unfair dismissal in terms of section 186(1)(d) of the LRA. Ngululu raised a preliminary point of lis alibi pendens and disputed that the council concerned had jurisdiction to conciliate the second dispute. The council rejected the objection to its jurisdiction, conciliated the dispute. No resolution prevailed between the parties and certificate of non-resolution was issued. Unhappy with the ruling of the council on jurisdiction, Ngululu instituted a review application in the Labour Court. That review was opposed by AMCU.

On 7 June 2016 AMCU and its members initiated the claims for unfair dismissal in the Labour Court. The first claim was that members of AMCU were dismissed for their affiliation to that union and in terms of section 187(1)(f) of the LRA, that dismissal was automatically unfair. Ngululu defended the action and raised two preliminary points. Ngululu contended that the Labour Court lacked jurisdiction as what was referred for conciliation was an unfair dismissal dispute and not an automatically unfair dismissal dispute. Regarding the second claim, Ngululu raised the lis alibi pendens defence. It contended that the issues raised in the second claim were the subject-matter of its review application which was then pending before the Labour Court. The Labour Court upheld Ngululu’s preliminary points and dismissed the claims by AMCU. That court refused to grant leave to appeal and subsequently the Labour Appeal Court dismissed AMCU’s petition for leave to appeal, hence the approach to the Constitutional Court.

In the Constitutional Court, the applicants argued that the automatically unfair dismissal and the ordinary unfair dismissal constituted one dismissal dispute. Further that the automatically unfair dismissal pleaded did not introduce a new or different dispute but only another reason or another label for the same dispute. On the issue of lis alibi pendens, the applicants submitted that the review of the jurisdictional ruling did not stay the employees right to refer a dispute to the Labour Court. The respondent argued the applicants were dismissed for participating in an unprotected strike action and their trade union membership had nothing to do with their dismissals. On the issue of lis alibi pendens, the respondents submitted that there was pending litigation arising out of the same dispute.

A unanimous judgment, penned by Jafta J (Mogoeng CJ, Khampepe ADCJ, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J and Tshiqi J, Victor AJ concurring), the Constitutional Court held that the LRA is structured in a manner that obliges parties to disputes to first make use of non-litigation dispute resolution mechanisms, before approaching courts. Section 191 of the LRA requires dismissed employees to refer disputes about the “fairness of a dismissal to conciliation” and what is referred to conciliation is the dispute and not causes of action or claims which may arise from that dispute. The Constitutional Court then upheld the appeal relying on the interpretation of section 191 of the LRA as authoritatively developed in the decision of Driveline and affirmed in Intervalve, that a reason for a dismissal does not itself constitute a dispute. The Constitutional Court held that the Labour Court’s judgment stemmed from its characterisation of an automatically unfair dismissal as a dispute separate from an unfair dismissal dispute that was referred to conciliation and as a result 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 Constitutional Court held that the Labour Court did have jurisdiction to adjudicate the automatically unfair dismissal claim.

On the issue of lis alibi pendens, the Constitutional Court held that the review application by Ngululu was directed at impugning the council’s ruling and the certificate of non-resolution. It had nothing to do with the unfairness of the second dismissal. It followed therefore that the causes of action and subject matters in the two proceedings were different. Therefore Ngululu had failed to establish the defence of lis alibi pendens.

The Constitutional Court held that the appeal must be upheld and since the merits of the claim were not determined, the matter must be remitted to the Labour Court and that Ngululu should pay the costs.

The Full judgment  here