National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products

In early 2020, the respondent undertook a large-scale retrenchment exercise arising from operational requirements, which led to the dismissal of the applicants in July 2020. The applicants (NUMSA and six of its members) initially approached the Labour Court on an urgent basis in terms of section 189A(13) of the Labour Relations Act 66 of 1995 (LRA), alleging that the respondent had predetermined the dismissals and failed to afford them a proper consultation opportunity. They succeeded and were reinstated, whereafter a fresh facilitation process commenced under section 189A. Following the second facilitation process, the applicants were again dismissed on 12 November 2020. After facilitation failed, the applicants directly referred an unfair dismissal dispute to the Labour Court under section 189A(7)(b)(ii) of the LRA. The respondent raised a preliminary jurisdictional objection, contending that the applicants were first required to refer the dispute to the CCMA or a bargaining council for conciliation. The Labour Court dismissed the objection, finding that conciliation was not required after a failed facilitation process. On appeal, the Labour Appeal Court reversed this decision, holding that conciliation was a mandatory precondition to approaching the Labour Court. The applicants then sought leave to appeal to the Constitutional Court.

• Whether the Constitutional Court's jurisdiction is engaged and whether leave to appeal should be granted.
• Whether section 189A(7)(b)(ii) of the LRA requires a dismissal dispute (following a failed facilitation process in a mass retrenchment) to first be referred for conciliation before it may be adjudicated by the Labour Court.
• What is the purpose of the reference to section 191(11) in section 189A(7)(b)(ii) of the LRA — is it purely a timing provision or does it incorporate the entire section 191 conciliation process?
• Whether imposing a concillation requirement after failed facilitation unjustifiably limits the rights of access to courts (section 34 of the Constitution) and fair labour practices (section 23(1) of the Constitution).

Leave to appeal is granted. The appeal is upheld. The order of the Labour Appeal Court is set aside. The order of the Labour Court is reinstated, and the matter is remitted to the Labour Court to decide the merits of the applicants' case. There is no order as to costs.

Section 189A(7)(b)(ii) of the LRA confers direct jurisdiction on the Labour Court to adjudicate unfair dismissal disputes arising from mass retrenchments after a failed facilitation process, without requiring prior conciliation at the CCMA or a bargaining council. The reference to section 191(11) in section 189A(7)(b)(ii) serves only as a time-limit provision (requiring referral within 90 days) and does not incorporate the conciliation prerequisites contained in sections 191(1) and 191(5)(b). Requiring conciliation after failed facilitation would be duplicative, contrary to the purpose of section 189A (which is to enable speedy intervention in mass retrenchments), and would unjustifiably limit the constitutional right of access to courts. Accordingly, employees who elect adjudication under section 189A(7)(b)(ii) cannot be subjected to an additional jurisdictional hurdle that is not imposed on employees who elect strike action under section 189A(7)(b)(i).

The majority endorsed as correct the Labour Appeal Court's obiter remark in Edcon v Steenkamp that requiring an additional 30-day conciliation process at the end of the 60-day facilitation period would be unnecessary duplication. The majority noted that there appears to be little to no benefit to post-facilitation conciliation regarding the substantive fairness of ensuing dismissals because the issues would largely duplicate those already canvassed during facilitation, and counsel for the respondent was unable to substantiate the fundamental differences between the two processes in this context. The majority also questioned whether conciliation is a jurisdictional requirement having substantive value in every dismissal dispute process, and observed that it was unpersuaded by the respondent's characterisation of strike action under section 189A(7)(b)(i) as purely retaliatory. The minority judgment, though non-binding, contained extensive obiter observations on the high premium placed on pre-adjudication conciliation in South African labour law and the qualitative differences between pre-dismissal facilitation and post-dismissal conciliation.

This judgment is significant because it authoritatively resolves a conflict between the Labour Court and the Labour Appeal Court on the interpretation of section 189A(7)(b)(ii) of the LRA — a provision governing the specialised procedure for large-scale retrenchments. By holding that concillation is not a prerequisite to Labour Court adjudication after a failed facilitation process, the Constitutional Court has removed a procedural barrier that would have delayed access to justice for dismissed employees and duplicated processes that had already occurred. The decision affirms the expedited purpose of section 189A and protects employees' rights of access to courts under section 34 of the Constitution and fair labour practices under section 23(1). It also clarifies that legislative cross-references to section 191(11) in the mass-retrenchment context operate as timing provisions rather than as vehicles importing the ordinary conciliation requirements. As a split decision of the apex court, it provides definitive guidance on the architecture of the LRA's dispute-resolution framework for mass dismissals.