The dispute concerned an alleged automatically unfair dismissal based on discrimination on the grounds of age. The dispute was referred to the CCMA for conciliation on 15 February 2018. The conciliation meeting was held on 13 July 2018, when a certificate of outcome was issued certifying the dispute remained unresolved. On 11 October 2018, the applicants referred the dispute to the Labour Court for adjudication. The respondent filed a special plea contending that the dispute was referred to the court out of time. The referral was made on the 88th day after the certificate was issued.
1. The special plea is dismissed. 2. The registrar is directed to enroll the matter for trial. Each party was ordered to pay its own costs.
In the case of a dispute that is required to be referred for adjudication to the Labour Court under section 191(5)(b) of the LRA, section 191(11)(a) requires the dispute to be referred within 90 days of the issuing of the certificate of outcome by the CCMA or bargaining council certifying that the dispute remains unresolved, regardless of the date on which the 30-day period immediately following the date of referral of the dispute to the CCMA expired. The plain wording of section 191(11) draws a clear distinction between the processes of arbitration and adjudication, and the time limits applicable to each.
The court observed that to the extent that the SAMWU v Ngwathe Local Municipality judgment made references to referrals for adjudication under section 191(5)(b), these were obiter dicta as that case dealt specifically with referrals to arbitration under section 191(5)(a). The court noted that the LAC in SAMWU did not refer to or explicitly overturn the Hernic decision. The court also commented that the absence of a corresponding provision for arbitration referrals may be anomalous, but the plain wording of section 191(11) must be given effect. The court also observed that if the Constitutional Court in F & J Electrical had considered that the date of expiry of the 30-day period post-referral was relevant, it would have said so.
This case provides important clarification on the interpretation of section 191(11)(a) of the LRA regarding time limits for referring disputes for adjudication to the Labour Court. It distinguishes between the time limit requirements for referrals to arbitration (section 191(5)(a)) and referrals for adjudication (section 191(5)(b)), confirming that for adjudication referrals, the 90-day period runs from the date the certificate of outcome is issued, not from the expiry of the 30-day conciliation period. This provides certainty for employees and trade unions seeking to refer automatically unfair dismissal disputes to the Labour Court.