Zixolisle Feni v Commissioner for Conciliation, Mediation and Arbitration and Others

The appellant was employed by the Pan South African Language Board (third respondent). On 27 June 2016, the CEO of third respondent issued a notice calling upon appellant to make representations as to why his services should not be terminated on grounds of incompatibility, including allegations of campaigns to attack the CEO's legitimacy and undermine authority. The appellant did not make representations and was dismissed with immediate effect on 29 June 2016. Following dismissal, appellant referred an alleged unfair dismissal dispute to the CCMA on 6 July 2016, describing it as an "automatic unfair dismissal" based on "dismissal for making protected disclosures and for exercising my rights". A certificate of non-resolution was issued on 25 July 2016, certifying the dispute could be referred to the Labour Court as it involved alleged automatic unfair dismissal. On 26 July 2016, appellant completed a second LRA 7.11 referral form for the same dismissal, this time describing it as dismissal "for unknown reasons" with facts being "dismissed when there was no hearing, no charges referred and no fault of my own". At conciliation proceedings on 26 August 2016, third respondent raised a point in limine that the CCMA lacked jurisdiction as two unfair dismissal disputes had been referred pertaining to the same dismissal. The commissioner upheld the point in limine, ruling the CCMA was functus officio. Appellant approached the Labour Court contending the CCMA had jurisdiction to hear the second referral. Rabkin-Naicker J dismissed the application, finding this was not a case of two causes of action but rather seeking two separate hearings for the same dismissal, which was impermissible.

• Whether the CCMA has jurisdiction to conciliate and arbitrate a second dismissal referral when a first referral concerning the same dismissal on different grounds had already been referred to the Labour Court
• Whether the doctrine of res judicata applies to prevent a second referral concerning the same dismissal
• Whether the doctrine of lis pendens applies to prevent a second referral concerning the same dismissal while the first referral is pending before the Labour Court
• Whether an employee can refer the same dismissal to the CCMA on multiple occasions based on different reasons for alleged unfairness

The appeal was dismissed with costs.

Where an employee refers a dismissal dispute to the CCMA and that dispute proceeds to the Labour Court (as in cases of automatic unfair dismissal), the employee cannot simultaneously refer the same dismissal to the CCMA on different grounds. The doctrine of lis pendens applies to prevent concurrent proceedings concerning the same dismissal, as what must be referred to conciliation is the unfairness of the dismissal itself, not the various reasons for dismissal. A single act of dismissal can only be the subject of one set of proceedings, though those proceedings may be amended to include additional grounds under section 158(2) of the LRA. Once the CCMA has dealt with a dismissal dispute and issued a certificate of non-resolution, it becomes functus officio regarding that dismissal and lacks jurisdiction to entertain a second referral based on the same dismissal.

The Court observed that allowing the appellant's argument to succeed would create significant obstacles to the expeditious resolution of dismissals, a core objective of the LRA. An employee could potentially raise a battery of reasons for the same dismissal sequentially, creating multiple concurrent proceedings before different forums. The Court noted there was no prejudice to the appellant because section 158(2) of the LRA provides mechanisms for amplifying a case to include additional grounds, with the Labour Court able to sit as an arbitrator for components that would ordinarily be arbitrated. The Court emphasized this approach would be congruent with the fundamental principle from AMCU that where there is one dispute, there should be one set of proceedings.

This case establishes important principles regarding the procedural requirements for challenging dismissals under the LRA. It clarifies that while an employee may have multiple reasons for contending a dismissal is unfair, these cannot be the subject of separate concurrent proceedings based on a single act of dismissal. The case reinforces the principle of lis pendens in labour law context and emphasizes the LRA's policy objective of expeditious resolution of dismissal disputes. It provides guidance on the distinction between multiple causes of action (separate dismissals) versus multiple reasons for a single cause of action (one dismissal with various grounds of unfairness). The judgment also highlights the protective mechanisms in section 158(2) of the LRA which allow for amendment and expansion of grounds within a single proceeding, thereby preventing prejudice to employees while maintaining procedural efficiency.