National Union of Metal Workers of South Africa and Francis Magdalena King v BMW (South Africa) (Pty) Ltd

The applicants alleged that the second applicant was dismissed by BMW (South Africa) (Pty) Ltd in circumstances amounting to an automatically unfair dismissal based on age discrimination. The dispute was referred to the CCMA for conciliation on 15 February 2018, within the prescribed 30-day period. Conciliation only took place on 13 July 2018, when a certificate of outcome was issued recording that the dispute remained unresolved. On 11 October 2018, the applicants referred the dispute to the Labour Court for adjudication. The respondent raised a special plea contending that the referral to the Labour Court was out of time.

The respondent’s special plea was dismissed, and the registrar was directed to enrol the matter for trial. Each party was ordered to pay its own costs.

This judgment clarifies the procedural distinction in section 191 of the Labour Relations Act between referrals to arbitration and referrals to the Labour Court for adjudication. It confirms that, for adjudication disputes, the 90-day referral period runs from the date of the certificate of outcome, reinforcing legal certainty and limiting the application of SAMWU v Ngwathe to arbitration matters.