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

During January 2016, Ngululu Bulk Carriers (Pty) Limited employees, including members of the Association of Mineworkers and Construction Union (AMCU), engaged in an unprotected strike. When they failed to return to work, 476 employees were dismissed. AMCU referred an unfair dismissal dispute to the relevant bargaining council for conciliation. On 9 March 2016, the dispute was conciliated without success and a certificate of non-resolution was issued. Ngululu subsequently re-employed some dismissed employees, but no AMCU members were re-employed. AMCU considered this selective re-employment to be a further dismissal and referred a second dispute to the bargaining council on 5 April 2016, alleging unfair dismissal under section 186(1)(d) of the LRA. Ngululu disputed the council's jurisdiction, but the council proceeded with conciliation. A second certificate of non-resolution was issued. Ngululu instituted a review application in the Labour Court challenging the council's jurisdiction and the certificate's validity. On 7 June 2016, AMCU initiated claims for unfair dismissal in the Labour Court, alleging that the dismissal was automatically unfair under section 187(1)(f) due to union affiliation. Ngululu raised two preliminary points: (1) the Labour Court lacked jurisdiction because an automatically unfair dismissal dispute had not been referred to conciliation; and (2) the second claim was subject to lis alibi pendens because the same issues were pending in the review application. The Labour Court upheld both points and dismissed the claims. Leave to appeal was refused, and the Labour Appeal Court dismissed AMCU's petition for leave to appeal.

• Whether the Labour Court has jurisdiction to adjudicate an automatically unfair dismissal claim where the dispute referred to conciliation was characterised as an unfair dismissal dispute
• Whether the proper interpretation of section 191 of the Labour Relations Act requires separate referral to conciliation for automatically unfair dismissal disputes
• Whether the defence of lis alibi pendens applies where review proceedings concerning jurisdiction are pending while a substantive unfair dismissal claim is brought
• Whether lower courts are bound by judicial precedent from higher courts regarding the interpretation of section 191 of the LRA

1. It is declared that the liquidators of Ngululu Bulk Carriers (Pty) Limited have replaced it as respondents. 2. Leave to appeal is granted. 3. The order of the Labour Court is set aside. 4. The matter is remitted to the Labour Court for determination of the merits. 5. The liquidators of Ngululu Bulk Carriers (Pty) Limited are ordered to pay costs in the Labour Court and in this Court.

1. Under section 191 of the Labour Relations Act, what is referred to conciliation is the dispute about the fairness of dismissal, not specific causes of action or reasons for dismissal. A referral of an unfair dismissal dispute encompasses automatically unfair dismissal claims - no separate referral to conciliation is required for automatically unfair dismissals. 2. A reason for dismissal (such as automatic unfairness under section 187) does not itself constitute a separate dispute; it is simply a reason for the dismissal whose fairness may be in dispute. 3. Where a certificate of non-resolution has been issued following conciliation, section 157(4)(b) provides that this is sufficient proof that an attempt was made to resolve the dispute through conciliation, and the Labour Court may not decline jurisdiction under section 157(4)(a). 4. Lower courts are bound by judicial precedent and must follow legal interpretations of higher courts unless and until those higher courts decide otherwise. 5. For the defence of lis alibi pendens to succeed, three requirements must be satisfied: same parties, same cause of action, and same subject matter. Where proceedings concern different subject matters (jurisdictional review versus substantive unfairness of dismissal) and different tribunals have different competences, the defence does not apply.

The Court noted that while conciliation involves both sides of the dispute and the employer always knows the reasons for dismissal, the employee may not know those reasons at the time of referral. The reasons may be revealed during conciliation. The Court also observed that the rule that costs should not ordinarily be granted in labour matters is based on the special relationship between employees and employers that continues after dispute resolution. However, where that relationship has ended (as through dismissal and liquidation), the usual rule that costs follow the result should apply. The Court commented that the judicial precedent principle in Walters applies not only to High Courts following the Supreme Court of Appeal, but by implication to all lower courts following higher courts in the court hierarchy.

This case provides authoritative guidance on the proper interpretation and application of section 191 of the Labour Relations Act, particularly regarding the conciliation requirement for dismissal disputes. It clarifies that employees are not required to separately refer automatically unfair dismissal disputes to conciliation if they have already referred a general unfair dismissal dispute - the reason for dismissal does not constitute a separate dispute requiring independent conciliation. The judgment reinforces the principle of judicial precedent (stare decisis) in South African law, emphasizing that lower courts must follow binding decisions of higher courts. It also clarifies the application of the common law defence of lis alibi pendens in labour matters, confirming that all three requirements (same parties, same cause of action, same subject matter) must be satisfied. The case protects workers' access to justice by preventing procedural technicalities from barring substantive claims where proper conciliation attempts have been made. The decision has practical importance for labour practitioners in structuring dispute referrals and understanding the relationship between conciliation and subsequent adjudication or arbitration.