South African Broadcasting Corporation (SOC) Limited v The Commission for Conciliation Mediation and Arbitration and Others

The third respondent (employee) was dismissed by the SABC on 17 October 2018. The employee contested the fairness of her dismissal and referred a dispute to the CCMA. The SABC challenged the CCMA's jurisdiction, arguing that it had treated the dismissal as a breach of contract rather than misconduct, and therefore the employee could only challenge the lawfulness (not fairness) of the dismissal. Commissioner Mqingwana ruled that the CCMA had provisional jurisdiction and would hear evidence to determine whether it had jurisdiction to hear the merits. The matter was transferred to Commissioner Du Plessis, who refused to hear evidence on the jurisdictional point. On 7 October 2019, the SABC filed a review application (JR 2243/19) seeking to set aside Commissioner Mqingwana's ruling. On 11 October 2019, the SABC filed this application seeking to stay the arbitration proceedings pending the review.

• Whether the SABC established a prima facie right to stay the arbitration proceedings
• Whether it is just and equitable for the Labour Court to review an interlocutory ruling before the dispute has been finally determined, in terms of section 158(1B) of the LRA
• Whether an employer can avoid the statutory protections against unfair dismissal by characterizing a termination of employment as a breach of contract rather than misconduct
• Whether the SABC would suffer irreparable harm if the stay was not granted
• Whether costs should be awarded de bonis propriis against the SABC's attorneys

The application was dismissed with costs. The court made a provisional order for costs to be paid de bonis propriis (from the personal assets of the SABC's attorneys) on the scale as between attorney and client. The SABC's attorneys were afforded seven days to make submissions as to why the costs order should not be confirmed.

The binding legal principles established are: (1) A termination of employment constitutes a 'dismissal' as defined in section 186 of the LRA regardless of whether the employer characterizes it as acceptance of a repudiation and cancellation of contract in common law terms, or as a disciplinary dismissal for misconduct - the statutory definition includes 'termination of employment with or without notice'; (2) Section 158(1B) of the LRA requires exceptional circumstances ('just and equitable') for the Labour Court to review interlocutory rulings before final determination of a dispute, consistent with the policy of avoiding piecemeal reviews and promoting expeditious dispute resolution; (3) A provisional ruling assuming jurisdiction pending evidence does not constitute a final reviewable jurisdictional determination; (4) The CCMA has jurisdiction over dismissals for misconduct pursuant to section 191(5) of the LRA, and this jurisdiction cannot be defeated by an employer's election to characterize the dismissal in contractual terms.

The court made several significant obiter observations: (1) It is not the function of the Labour Court to micro-manage arbitration hearings or issue directions to commissioners on how to conduct hearings - control over proceedings is best left to the presiding commissioner; (2) Some jurisdictional points (particularly concerning whether a person is an 'employee' or whether a termination constitutes a 'dismissal') are best determined after all evidence is heard rather than as discrete preliminary enquiries; (3) Commissioners are enjoined and empowered by section 138 to avoid legal formalities and deal firmly and fairly with the merits of disputes; (4) Good corporate governance and moral obligations owed by corporations to employees demand that respect be accorded to employees and that denying effective access to justice through application of corporate muscle must be avoided; (5) There is a difference between robust defence of interests and a conscious strategy to deny access to justice through superior resources; (6) The court expressed concern about public funds being spent on meritless applications when the SABC survives on Treasury bailouts; (7) The court warned practitioners against pursuing hopeless cases, citing principles that require representatives to place the interests of justice and the court before parochial client interests and partisan zeal.

This case is significant in South African labour law for several reasons: (1) It reinforces that employers cannot circumvent statutory unfair dismissal protections by characterizing dismissals in common law contractual terms rather than as disciplinary matters; (2) It provides guidance on the application of section 158(1B) of the LRA, which restricts piecemeal reviews of interlocutory rulings during arbitration; (3) It demonstrates the court's willingness to impose costs de bonis propriis against legal practitioners who pursue meritless applications that delay dispute resolution; (4) It emphasizes the importance of expeditious dispute resolution in labour matters and condemns dilatory litigation tactics; (5) It affirms that the constitutional right to fair labour practices and the remedial purpose of unfair dismissal protection cannot be undermined by technical legal arguments; (6) It addresses corporate governance obligations of public entities toward employees, particularly in the context of financially constrained state-owned enterprises.