South African Clothing and Textile Workers Union (SACTWU) and Others v Abduruman Moolajie N.O. and Others

SACTWU and 22 employee applicants referred an alleged automatically unfair dismissal dispute to the Labour Court against the joint liquidators of Mika Industries CC (their employer) and Precision Cutting and Trims (Pty) Ltd. The applicants alleged their dismissal occurred because of or for reasons related to the transfer of Mika Industries' business to Precision Cutting as a going concern, as contemplated in sections 197 and 197A of the LRA. Mika Industries was voluntarily liquidated on 18 March 2021 and the applicants were informed. The matter was initially referred to the CCMA for conciliation on 13 April 2021 against Mika Industries only. On 14 April 2021, applicants applied to join Precision Cutting. Conciliation occurred on 11 May 2021. The CCMA issued a joinder ruling on 1 July 2021. Arbitration was requested on 7 September 2021 and scheduled for 25 January 2022. At the arbitration, the Commissioner ruled the CCMA lacked jurisdiction (the dispute involved dismissals for operational requirements of more than one employee where the employer had more than 10 employees). A certificate of outcome was issued on 25 January 2022. The referral to the Labour Court was made on 13 May 2022 (or 3 May 2022 according to applicants), almost 10 months late. The applicants sought condonation for the late referral. Precision Cutting opposed the condonation but did not file heads of argument or attend the hearing. The joint liquidators did not oppose or file a notice to abide.

• Whether condonation for the late referral of an alleged dismissal dispute to the Labour Court should be granted
• The calculation of the 90-day period for referring a dismissal dispute to the Labour Court under section 191(5) and 191(11) of the LRA
• The factors to be considered in determining whether granting condonation is in the interests of justice
• Whether the degree of lateness, explanation for delay, prospects of success, and prejudice to parties justify granting condonation
• The effect of a joinder ruling issued after the 30-day period following referral to conciliation

1. Condonation for the late filing of the statement of case is granted. 2. There is no order as to costs.

The 90-day period for referring an automatically unfair dismissal dispute to the Labour Court under section 191(11) of the LRA is triggered by the earlier of either (a) the lapse of 30 days from the date of referral to the CCMA for conciliation, or (b) the issue of a certificate of outcome by the CCMA. Where 30 days have elapsed since the referral to the CCMA without a certificate being issued, the subsequent issue of a certificate does not restart or extend the 90-day period. In condonation applications, all relevant factors must be considered including the degree of lateness, explanation for delay, prospects of success, prejudice to parties, and the importance of the case. Where a joinder application is pending at the CCMA to join a party alleged to be liable in a section 197 transfer dispute, it may be reasonable for applicants to await the outcome of that joinder application before referring the matter to the Labour Court, as employer parties must be served with the conciliation referral before being cited in subsequent proceedings (per Intervalve). However, this does not alter the calculation of the 90-day period.

The Court observed that it would have been ideal for both parties' condonation applications (applicants for late referral and Precision Cutting for late response) to be determined simultaneously, and expressed concern that the failure to do so may result in further delays. The Court noted with some criticism that the union official should have been aware from a cursory reading of the LRA that the CCMA lacked jurisdiction to arbitrate disputes involving dismissals for operational requirements affecting more than one employee where the employer employed more than 10 employees. The Court also commented that it was unclear why the CCMA took from April 2021 to July 2021 to issue the joinder ruling. The Court stated that while there is reluctance to penalize litigants for their attorneys' lack of diligence (per Saloojee v Minister of Community Development), there is a limit, but this was not a case where the litigant should be penalized for attorney negligence. The Court observed that Precision Cutting's position was contradictory - claiming prejudice if condonation was refused because it would be "deprived of an opportunity to have its case considered" while simultaneously complaining about the delay.

This judgment clarifies the calculation of the 90-day period for referring dismissal disputes to the Labour Court under section 191(11) of the LRA, particularly in circumstances where a CCMA joinder ruling is issued after the 30-day conciliation period has elapsed. It confirms the application of the Manetza principle that the 90-day period is triggered by the earlier of either the lapse of 30 days from referral to the CCMA or the issue of a certificate of outcome. The judgment also illustrates the application of condonation principles in labour disputes, emphasizing the importance of expeditious resolution while balancing the interests of justice where multiple employees are affected and where delays are not entirely attributable to the applicant. It reinforces the principle from Intervalve that employer parties must be properly served with the conciliation referral before being cited in subsequent proceedings, which may justify delays in referring matters where joinder applications are pending.