Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others

Ngululu Bulk Carriers dismissed 476 employees, including members of AMCU, in January 2016 following their participation in an unprotected strike. AMCU referred an unfair dismissal dispute to the relevant bargaining council, which was conciliated unsuccessfully and certified unresolved. Thereafter, Ngululu selectively re-employed some dismissed employees, but none of the AMCU members. AMCU treated this selective re-employment as a further dismissal under section 186(1)(d) of the Labour Relations Act and referred it to conciliation, which again failed. Ngululu challenged the council’s jurisdiction over the second dispute by way of review in the Labour Court. Meanwhile, AMCU instituted proceedings in the Labour Court alleging that the original dismissals were automatically unfair under section 187(1)(f) of the LRA. Ngululu raised two preliminary points: that the Labour Court lacked jurisdiction because an automatically unfair dismissal dispute had not been conciliated, and that the second claim was barred by lis alibi pendens due to the pending review application. The Labour Court upheld both points and dismissed the claims.

Leave to appeal was granted; the order of the Labour Court was set aside; the matter was remitted to the Labour Court for determination of the merits; the liquidators of Ngululu Bulk Carriers (Pty) Limited were ordered to pay costs in the Labour Court and the Constitutional Court.

The case authoritatively clarifies that under section 191 of the LRA, the referral to conciliation concerns the dispute about the fairness of a dismissal, not its legal classification as automatically unfair or otherwise. It reinforces the binding nature of precedent on lower courts and limits the scope of lis alibi pendens in labour matters, particularly where review proceedings and merits adjudication serve different functions. The judgment protects access to the Labour Court and prevents overly formalistic jurisdictional barriers.