September and Others v CMI Business Enterprise CC

The applicants (three employees) were employed by the respondent (CMI) in 2009 as general workers. They alleged they were subjected to severe racial discrimination, verbal and physical abuse during their employment. On 13 September 2011, they resigned, claiming the working conditions had become intolerable. On 19 September 2011, they referred a dispute to the CCMA for conciliation, ticking a box describing it as "unfair discrimination S10 of the Employment Equity Act" in the referral form. They did not tick "unfair dismissal" and did not complete Part B of the form (reserved for dismissal disputes). When asked for the desired outcome, they stated: "Employer to stop discriminating us". A conciliation meeting was held but the dispute was not resolved. The commissioner issued a certificate stating an "unfair discrimination" dispute remained unresolved. The applicants then referred a constructive dismissal/automatically unfair dismissal dispute to the Labour Court, which granted default judgment in their favour. CMI applied for rescission, arguing the Labour Court lacked jurisdiction because no dismissal dispute had been referred to conciliation.

• Whether the referral of a dismissal dispute to conciliation is a jurisdictional prerequisite for the Labour Court to adjudicate such a dispute
• Whether evidence of what transpired during CCMA conciliation proceedings may be led in subsequent proceedings
• The correct interpretation of rule 16 of the CCMA Rules (pre-2015 amendment) regarding privilege of conciliation communications
• Whether a court can determine the nature of the dispute conciliated by reference to evidence beyond the referral form and certificate of outcome
• Whether an unfair discrimination dispute under section 10 of the Employment Equity Act can encompass a dismissal dispute

Leave to appeal granted. Appeal upheld (by majority). The order of the Labour Appeal Court was set aside and substituted with "The appeal is dismissed". This restored the Labour Court's dismissal of the rescission application and maintained the default judgment in favor of the applicants. No order as to costs.

The majority established the following binding principles: (1) While referral of a dispute to conciliation is generally a precondition for Labour Court jurisdiction, courts may receive evidence beyond the referral form and certificate of outcome to determine what dispute was actually conciliated. (2) Rule 16 of the CCMA Rules (pre-amendment) creates privilege for without prejudice settlement communications but does not prohibit evidence as to the nature of the dispute that was conciliated. Evidence that is merely descriptive of the nature of the dispute (as opposed to substantive settlement discussions) is not privileged. (3) In exceptional circumstances and where the interests of justice require, courts may consider evidence emanating from conciliation proceedings to determine the true nature of the dispute. (4) The referral form and certificate of outcome constitute prima facie evidence of the dispute conciliated, but this can be rebutted by evidence showing the true dispute was different. (5) A non-formalistic, substantive approach must be adopted in interpreting labour law procedures, consistent with section 23 constitutional rights and the objects of the Labour Relations Act.

The majority judgment made several important observations: (1) The concept of constructive dismissal is legal terminology generally foreign to non-lawyers, and it would be unrealistic to expect unrepresented workers to understand technical distinctions when completing referral forms. (2) Commissioners have a duty to actively identify the true nature of disputes, particularly on technical matters like constructive dismissal, and their certificates should reflect the actual dispute addressed. (3) Courts should not slavishly adhere to formalism where this would undermine access to justice for vulnerable workers. (4) The 2015 amendment to rule 16 (allowing courts to order disclosure) supports the interpretation that absolute privilege was never intended. (5) The majority cautioned that evidence from conciliation should only be admitted sparingly and where the interests of justice require. The dissent observed that: (1) Commissioners have no power to conciliate disputes not referred to conciliation - doing so would be ultra vires. (2) The CCMA is a creature of statute bound by legality principles. (3) Sections 115, 133 and 135 of the LRA clearly limit commissioners to conciliating referred disputes. (4) Discussion of a dispute at conciliation is irrelevant to jurisdiction if it was not referred. (5) The applicants could easily have referred a dismissal dispute but chose not to.

This case addresses important questions about access to justice in labour disputes, particularly for unrepresented workers. It provides guidance on: (1) the interpretation of rule 16 of the CCMA Rules regarding privilege in conciliation proceedings - holding that evidence as to the nature of the dispute is not privileged; (2) the approach to determining whether a dispute was conciliated - moving away from strict formalism and allowing courts to look beyond referral documents in exceptional circumstances; (3) the balance between procedural requirements and substantive justice in labour law. The case demonstrates the tension between legal formalism and substance in the labour dispute resolution system. It emphasizes that commissioners have a role in identifying the true nature of disputes and that courts should not be bound by technical defects in referral documents where the substance of the dispute was actually addressed in conciliation. The case has particular significance for vulnerable workers who may lack legal representation when completing CCMA forms.