Motlhoioa v Council for Scientific Research and Industrial Research (JS614/20) [2021] ZALCJHB 340 (6 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JS614/20

In the matter between:

RATILE MOTLHOIOA Applicant

and

COUNCIL

FOR SCIENTIFIC RESEARCH AND

INDUSTRIAL RESEARCH Respondent

Heard: 30 June 2021

Delivered: 06 October 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically

by circulation to the parties’ representatives by email. The date for hand-down is deemed to be on 06 October 2021

JUDGMENT

SASS, AJ

Introduction

[1] This case concerns, inter alia, the alleged automatically unfair dismissal of the Applicant by the Respondent as a result of her age and whether the Respondent unfairly discriminated against the Applicant based on her age.

[2] The Respondent raised two special pleas in its Statement of Response along with a number of other preliminary matters. The special pleas were enrolled for hearing on 30 June 2021.

The first special plea

[3] The first special plea related to the alleged late referral of the dispute to this Court, the failure of the Applicant to seek condonation and condonation not having been granted in respect of such late referral. During argument it became apparent that the

Applicant had applied for condonation in respect of the late referral of the dispute, but because of the email address of the Respondent’s

attorney had been misspelt, the condonation application had not been received by the Respondent prior to 30 June 2021.

[4] The Respondent indicated its intention to oppose the condonation application and the issue of condonation became the subject matter of a pending application to be adjudicated in due course, and I was consequently not required to determine the first special plea.

The other preliminary matters raised by the Respondent

[5] These related to the Respondent’s contention that the Applicant had failed to plead in her Statement of Claim that she was dismissed, and that this dismissal was as a result of discrimination, which amounted to unfair discrimination. The Respondent sought the dismissal of the Applicant’s claim on this basis.

[6] This alleged failing in the manner that the Applicant pleaded her case in the Statement of Claim ought to have been raised as an exception (on the basis that the Applicant’s Statement of Claim failed to disclose a cause of action) by following the procedure as prescribed by Rule 19 of the Uniform Rules of Court and not as a preliminary matter / point in limine. As such, I am unable to dismiss the Applicant’s claim in the manner as contended by the Respondent.

[7] That then leaves for consideration the second special plea, which I now turn to.

The second special plea

[8] The second special plea has, in effect, two parts, namely: (i) firstly – no automatically unfair dismissal dispute had been conciliated between the parties by the Commission for Conciliation, Mediation and Arbitration (CCMA) prior to this dispute being referred to this Court for adjudication; and (ii) secondly – the referral of the unfair dismissal dispute to the CCMA was premature as at the time of such referral, the Applicant was still in the employ of the Respondent and no notice of termination had been issued to the Applicant yet.

Relevant background facts

[9] The Applicant’s referred an unfair labour practice dispute to the CCMA on or about 3 December 2019. No other dispute was referred to the CCMA at any other time through an LRA 7.11 form.

[10] The Applicant’s employment terminated on 31 December 2019. An important issue, in dispute in the main action, is whether or not that termination amounts to a dismissal.

[11] Conciliation proceedings took place at the CCMA on 27 January 2020. The CCMA issued a certificate of outcome of dispute on that date indicating that an unfair discrimination dispute between the parties remained unresolved and that the dispute could be referred to this Court for adjudication.

[12] The above facts were common cause.

The causes of action / disputes currently before this Court as pleaded by the Applicant

[13] Two causes of action / disputes have been pleaded by the Applicant in her Statement of Claim.

[14] The first cause of action / dispute is an unfair discrimination dispute. In this regard I refer to, inter alia, paragraphs 7 to 19 and 22 of the Statement of Claim.

[15] The second cause of action / dispute is an automatically unfair dismissal dispute. In this regard I refer to, inter alia, paragraphs 18, 20 and 21 of the Statement of Claim.

[16] As part of addressing the first part of the second special plea [i.e. does this Court lack the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute / cause of action seeing that the dispute which was referred to the CCMA was referred prematurely – i.e. before the date of dismissal (although the date of dismissal occurred prior to conciliation)], I also address the following question - Does this Court lack the necessary jurisdiction to adjudicate the unfair discrimination dispute / cause of action seeing that the Applicant only referred an unfair labour practice dispute to the CCMA?

[17] This further question as well as the two parts to the second special plea are addressed below.

Analysis/evaluation - Does this Court lack the necessary jurisdiction to adjudicate the unfair discrimination dispute / cause of action seeing that the Applicant only referred an unfair labour practice dispute to the CCMA?

[18] This question relates to whether an applicant and/or the conciliating commissioner is bound by the applicant’s classification or categorization of their dispute when the applicant referred it to the CCMA (through a LRA 7.11 form) or not. Put differently, can a conciliating commissioner be called upon to determine what the true dispute was at the time of conciliation (i.e. was it an unfair labour practice or an unfair discrimination and/or unfair dismissal dispute) or is the commissioner constrained by the dispute as specifically referred in the LRA 7.11 form of the applicant.

[19] The Applicant referred an unfair labour practice dispute to the CCMA. A certificate of outcome of dispute was issued in respect of an unfair discrimination dispute.

[20] It appears trite that a dispute may only be referred to the Labour Court for adjudication after that dispute has been conciliated by the CCMA.

[21] In National Union of Metalworkers of SA and others v Driveline Technologies (Pty) Ltd and another,[1] Zondo AJP stated the following:

“To me it is as clear as daylight that the wording of section 191(5) imposes the referral of a dismissal dispute to conciliation as a precondition before such a dispute can either be arbitrated or be referred to the Labour Court for adjudication. I cannot see what clearer language the legislature could have used other than the language it chose to use in section 191(5) if it had intended that the referral of a dismissal dispute to conciliation should be a pre-condition to such dispute being arbitrated or being referred to the Labour Court for adjudication."[2]

[22] The question is whether the dismissal dispute first needs to be brought before the CCMA for conciliation before it can be heard by this Court. In terms of section 157(4)(a) of the LRA, the Court may refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. A certificate issued by the CCMA stating that the dispute remains unresolved, would be sufficient proof that an attempt has been made to resolve that dispute through conciliation under 157(4)(a) of the LRA. There is a certificate to that effect in relation to an unfair discrimination dispute in casu. In relation to the certificate of outcome of dispute issued, I align myself with the conclusions reached in Bombardier Transportation (Pty) Ltd v Mtiya N.O. and others,[3] as have various other judgments of this Court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved (as the case may be).

[23] In NUM and others v Cementation Africa Contracts (Pty) Ltd,[4] the Court held that a party is bound by the commissioner’s determination of the nature of the dispute (after the commissioner

has indicated clearly in the certificate what dispute has been conciliated).

“[25] In the circumstances, and having regard to ss 135 and 191 of the Act, I am satisfied that as long as the party who refers the matter to conciliation indicates, for example, that the dispute is about his or her dismissal, both on substantive and procedural grounds, despite any specific issue or issues he or she raises with regard to why he or she disputes his or her dismissal to be fair, if the matter is not resolved at the conciliation, he or she is not barred from raising new issues at arbitration or adjudication. A party may not, however, change the nature of the dispute, that is if the dispute referred to conciliation concerns an unfair dismissal, it must be clear whether what is being conciliated is an unfair dismissal relating to (i) operational requirements, (ii) misconduct, (iii) incapacity, or (iv) an automatic unfair dismissal. The commissioner must then in his or her certificate clearly indicate what the dispute it attempted to conciliate concerned and the party intending to take the matter further is bound by the commissioner's determination of the nature of the dispute.”

[24] A party is not necessarily confined to the type or nature of the dispute which he/she/it has referred to the CCMA. A party would,

however, be confined to what dispute had been conciliated.

[25] In Driveline Technologies (Pty) Ltd the Labour Court had to determine whether subsequent to the issuing of a certificate of outcome by the Bargaining Council in an unfair dismissal (retrenchment) dispute, the union could amend its statement of case to reflect that there had been an automatically unfair dismissal. On the facts, the applicant referred the dispute to conciliation and described the dismissal as an ‘unfair termination of services’ and this was reflected on the certificate.[5] When the dispute was subsequently referred to the Labour Court for adjudication, it was referred as a dismissal on the basis of

operational requirements.[6]

NUMSA already filed a statement of case with the Labour Court and subsequently wanted to amend that statement of case.[7] The Court held that that the parties were bound by the categorization of the dispute by the conciliator who heard the dispute and not necessarily the categorization reflected on the form which is first submitted to the CCMA.

[26] The matter then went on appeal and the Labour Appeal Court held that there is no doubt that ‘operational requirements’ or ‘automatically unfair’ are merely reasons for the dismissal and do not constitute a dispute on their own and that on a proper reading of section 187(1) of the LRA it is clear that whether a dismissal is automatic or not depends on the reason. This was confirmed by the Constitutional Court in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others[8]. It is therefore clear on a proper interpretation of section 157(4), section 191 and section 187(1) of the LRA, what is referred to conciliation is the dispute and not the cause of action (or any claims that may stem from the dispute).

[27] The Labour Appeal Court went on to state that section 157(4)(a) of the LRA grants the Labour Court a discretion to determine a dispute which has not been submitted to conciliation.[9] It stated the following in this regard:

“The certificate which a mediator is obliged to issue in terms of s 135(5)(a) of the Act requires a statement only that the dispute has remained unresolved. Naturally enough the conciliator would state what dispute remained unresolved, otherwise the certificate of outcome would be unsatisfactorily vague. It would not serve to alert the Labour Court to what the parties had discussed in the

conciliation phase. But it has no bearing on the future conduct of the proceedings. The forum for subsequent proceedings is determined

by what the employee alleges the dispute to be. According to this characterization, the employee may either request the commission to arbitrate the dispute or may refer it to the Labour Court. It is unnecessary to consider here what the consequences are if the

employee's categorization of the dispute turns out to be incorrect. In the present case, the dispute could, so the appellants allege,

either have been classified as an unfair dismissal for operational reasons in terms of s 188(1)(a) (ii) or as an automatically unfair dismissal in terms of s 187(1)(c) of the Act to compel the employee to accept the employer's demand on a matter of mutual interest. In either case the appropriate forum would be the Labour Court.”

[28] The case of Intervalve[10] concerned a situation where NUMSA referred an unfair dismissal dispute in respect of three employer companies with common shareholders and directors. NUMSA referred the dispute to conciliation and then to the Labour Court for adjudication. When the dispute was referred, only one of the three employer companies were cited.[11] NUMSA then attempted to join the other two companies but was unsuccessful in the Labour Appeal Court.[12]

[29] In its majority judgment in Intervalve, the Constitutional Court held as follows:

“Section 191(5) creates two conditions one of which must be met before a dismissal dispute may be arbitrated or may be referred to the Labour Court for adjudication. The first condition is that the CCMA or bargaining council, as the case may be, must have issued a certificate of non-resolution of the dispute. The second is that a period of 30 days from the date on which the CCMA or the bargaining

council received the referral must have lapsed.”[13]

“Section 191(5) stipulates one of two preconditions before the dispute can be referred to the Labour Court for adjudication: there must be a certificate of non-resolution, or 30 days must have passed. If neither condition is fulfilled, the statute provides no avenue through which the employee may bring the dispute to the Labour Court for adjudication.”[14]

[30] The Constitutional Court went further in its majority judgment to state that section 157(4)(a) of the LRA does not extend the Labour Court’s jurisdiction or the discretion to adjudicate disputes which have not been conciliated.[15]

[31] In Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others,[16] the Constitutional Court dealt with the issue of whether the Labour Court had jurisdiction to adjudicate an automatically unfair dismissal cause of action where an unfair dismissal dispute had been referred to conciliation at the CCMA.[17]

[32] The Constitutional Court held that the Labour Court indeed had jurisdiction to adjudicate the automatically unfair dismissal claim. It considered section 191 of the LRA which requires dismissed employees to refer disputes about "the fairness of a dismissal to conciliation" and if conciliation fails and the employee alleges that the reason for the dismissal is one listed in section 191(5)(b) of the LRA (automatically unfair, operational requirements, participation in an unprotected strike and the employees' refusal to join, refused membership or expulsion form a trade union or closed shop agreement), the employee may elect to refer the dispute either to the relevant bargaining council for arbitration, or for adjudication to the Labour Court.

[33] The Constitutional Court emphasised that what is referred to conciliation is the dispute and not the cause of action or claims which may arise from the dispute. It was made plain that the reason for the dismissal is always known by the employer prior to conciliation and it is often only at this juncture where employees understand the true reason for the dismissal.

[34] The Constitutional Court rejected the Labour Court's view that: "a referral to conciliation of an unfair dismissal dispute does not include an automatically unfair dismissal dispute" and therefore in terms of section 157(4) of the LRA the Labour Court may refuse to adjudicate the dispute if it was not conciliated.

[35] The Constitutional Court cited with approval the Intervalve judgment which held that:

"Section 157(4)(a) confers upon the Labour Court the power to refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. Section 157(4)(b) then provides that a certificate issued by a commissioner that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation."[18]

[36] None of the above judgments concerned an unfair labour practice dispute being referred to conciliation, an unfair discrimination (and/or unfair dismissal dispute for that matter) being conciliated and that unfair discrimination (and/or unfair dismissal dispute for that matter) being referred to this Court for adjudication. They all related to unfair dismissal disputes where a party later seeks to change the reason for the dismissal. However, it is clear from these judgments that this Court may adjudicate a dispute if that dispute has been conciliated even if the dispute that was conciliated was not the dispute that the applicant had originally referred to the CCMA.

[37] In the circumstances, this Court does not lack the necessary jurisdiction to adjudicate the unfair discrimination dispute / cause

of action even though the Applicant only referred an unfair labour practice dispute to the CCMA.

Analysis/evaluation - Does this Court lack the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute / cause of action seeing that the Applicant only referred an unfair labour practice dispute to the CCMA and a certificate of outcome of dispute was issued in respect of an unfair discrimination dispute?

[38] The Applicant contends that an automatically unfair dismissal dispute was also conciliated during the conciliation proceedings. The Respondent denies this. Such a dispute was not referred to the CCMA through a LRA 7.11 form. The certificate of outcome makes no mention of an automatically unfair dismissal dispute although this Court would have the necessary jurisdiction to adjudicate either or both such disputes between the parties regardless of whether the certificate of outcome of dispute issued in casu stated ‘unfair discrimination dispute’ or ‘automatically unfair dismissal dispute’.

[39] In order for this Court to satisfy itself that it has the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute as pleaded in the Applicant’s Statement of Claim, it would need to enquire into and have regard to what was said or not said during the conciliation proceedings to determine if an automatically unfair dismissal dispute was conciliated between the parties and remained unresolved at the conclusion of the conciliation even though an unfair labour practice dispute was referred by the Applicant.

[40] In the Cementation Africa case,[19] the Court dealt with the issue of whether the conciliating commissioner may be called upon to verify which dispute was dealt with during the conciliation process and held that:

“For the commissioner therefore to be effective he/she needs the assurance that neither the arbitrator nor this court would summons him/her before it to explain what were the issues that he or she was confronted with at the conciliation, because logically he or she may then also be called to explain what issues were resolved and what not. The commissioner should not, in my view, be expected to be summonsed before the court to explain anything that may have transpired at the conciliation as this may constitute a limiting

factor with regard to what the commissioner may want to do to resolve the matter. More importantly parties may not want to take the commissioner into their confidence if they believe the commissioner may be summonsed to disclose what was discussed at the conciliation thus the whole purpose of the exercise is defeated. If the parties so desire they may at the conciliation agree in writing what the issues are that they wish to be determined if the conciliation fails; in the absence of such a written agreement, it is open to the parties to raise any issue or defence at the arbitration or adjudication albeit an issue or defence not canvassed at the conciliation.”

[41] Rule 16 of the Rules for the Conduct of Proceedings before the CCMA states the following in relation to conciliation proceedings:

41.1 Conciliation proceedings are private and confidential and are conducted on a without prejudice basis and no person may refer to anything said at the conciliation during subsequent proceedings, unless the parties agree in writing or as ordered to do so by a court of law.

41.2 No person, including a commissioner, may be called as a witness during subsequent proceedings in the Commission or in any court to give evidence about what transpired during conciliation unless as ordered by a court of law.

[42] In September and Others v CMI Business Enterprise CC,[20] the Constitutional Court was required to determine whether courts are allowed to have regard to evidence resulting from conciliation

proceedings. On the facts, the applicants lodged two referral forms with the CCMA, the first was for an alleged unfair labour practice and the second was for alleged unfair discrimination.[21] During conciliation proceedings, it became apparent that the dispute pertained to constructive dismissal as opposed to unfair discrimination.[22] However, the certificate of outcome indicated that the dispute was for unfair discrimination.

[43] In the majority judgment, Theron J stated the following:

“In my view, the commissioner is not bound by a party’s categorisation of the nature of the dispute. Rule 15 clearly intended

the commissioner to have the right and power to investigate and identify the true nature of the dispute.”[23]

[44] The majority went further to say that the general rule is that the referral form and the certificate of outcome are prima facie evidence of the nature of the dispute which was conciliated, “but that a party alleging that the nature of the dispute differs from the aforementioned could adduce evidence to such effect”.[24] Furthermore the Constitutional Court held that the ultimate question which needs to be asked is “whether during conciliation, the substance of the dispute became apparent”.[25] In order to adduce evidence to this effect, one would have to be able to rely on the record of the conciliation process.

[45] Theron J remarked that an order of court permitting disclosure of a conciliation record relating to the nature of the dispute, would be issued sparingly and only where the interests of justice warrant disclosure.[26]

[46] On this basis, the Constitutional Court held that evidence as to the nature of the dispute dealt with during conciliation proceedings may be led and that it is not privileged:

“Evidence as to the nature of the dispute is, to my mind, not privileged. This evidence does not relate to the substance of the proceedings and is merely descriptive. There is nothing in the majority judgments in either Driveline or Intervalve which precludes approaching the question of what dispute was conciliated and what was referred to the Labour Court for adjudication as a question of substance that requires substantive adjudication. In order to determine whether a matter referred to the Labour Court for adjudication had first been referred to the CCMA for conciliation, the first point of reference is the referral documents. However, if there is a dispute as to the nature of the dispute referred to the CCMA then regard may be had to evidence outside of these documents.”[27]

[47] During argument, I requested the parties to provide me with supplementary heads of argument in relation to the decision of the Constitutional

Court in September. The Applicant and Respondent’s representatives did so.

[48] The facts of the September case were very similar to the facts in casu. In both:

48.1 An unfair dismissal dispute was not referred by the employee parties to the CCMA in their respective LRA form 7.11s (an unfair labour

practice dispute and an unfair discrimination dispute was referred in September).

48.2 The conciliating commissioner did not issue a certificate of outcome which referred to any unfair dismissal dispute (the certificate in September referred to a claim under the Employment Equity Act – i.e. an unfair discrimination claim).

48.3 The employee parties instituted proceedings in the Labour Court in relation to an unfair dismissal dispute (not an automatically unfair dismissal dispute in September but an unfair dismissal dispute nonetheless, which did not form part of the LRA form 7.11).

48.4 The employee parties contend that they referred to the unfair dismissal dispute at conciliation even though it was not referred to in the LRA form 7.11.

[49] The Applicant’s supplementary heads totalled thirty-eight paragraphs, one of which dealt with the September judgment. The

Applicant simply submitted the following:

“In the matter of September and Others v CMI Business Enterprise CC [2018] 5 BLLR 431 (CC) held that, Commissioner’s duty is to determines true dispute to be certified unresolved.”

[50] The Respondent’s supplementary heads totalled 41 paragraphs, the bulk of which appeared to deal with the question of the premature

referral of the automatically unfair dismissal dispute. Insofar as the September judgment itself was concerned, the Respondent contended the following:

50.1 (at paragraph 29) Be that as it may, the Constitutional Court in September made it clear that the contents of a conciliation meeting may only be disclosed by agreement (which there currently is none) or as ordered otherwise by a Court of law. In casu, there is no order by a Court of law, nor any evidence as to what allegedly transpired at the conciliation meeting.

50.2 (at paragraph 31) It is argued in submission that September, supra is not authority for a situation where a litigant may refer whatsoever dispute it wishes to conciliation and then later on claim that the dispute that was conciliated was something totally different. That is not the import and ratio of September.

50.3 (at paragraph 32) Paragraph 55 of September makes it plain that the question that needs to be addressed is whether “there was compliance with section 191 of the Labour Relations Act, before the matter was referred to the Labour Court. The question may be determined with reference to the purpose of a referral of a dispute to conciliation”.

50.4 (at paragraph 33) In casu there was indeed non-compliance with section 191 of the LRA. The dispute that was referred was an unfair labour practice and arose on 17 September 2019. At that time there was no dismissal and/or notice of termination as yet. Furthermore, the referral is patently premature, and it obliterates what was set out in September, i.e. that the question that needs to be addressed is whether there was compliance with section 191 of the LRA. There was not.

50.5 (at paragraph 35) There is no dispute as to the nature of the dispute that was referred to the CCMA. Even the Statement of Claim makes it clear that it was an unfair labour practice that was referred and the excuse that was employed (belatedly) is that the employee was at that time not dismissed. It remains an unfair labour practice dispute that was referred and furthermore the dispute (if then a dismissal, as alleged by the Applicant) was premature. In the absence of a dispute as to the nature of the dispute referred to the CCMA, the ratio in September does not find application in any event. Nothing prohibited the Applicant and/or her trade union to refer an unfair dismissal dispute after 31 December 2019. She chose not to do so.

50.6 (at paragraph 36) In September it must be borne in mind that the Applicants referred the dispute after what they viewed as a termination of their service (based on an alleged automatic unfair dismissal, constructively). It was referred as an allegation of unfair discrimination in terms of the Employment Equity Act, again after their termination. In the current matter, there was no such allegation of discrimination. Furthermore, there is no allegation of dismissal or termination.

50.7 (at paragraph 39) There is no “evidence” before this Honourable Court as to what allegedly transpired at the conciliation stage. It is argued that September, supra does not find application in casu in any event.

[51] I do agree with a number of these submissions made by the Respondent. It is correct that the contents of a conciliation meeting may only be disclosed by agreement or as ordered otherwise by a Court of law and that in casu there is no such agreement or order by a Court of law, nor any evidence as to what allegedly transpired at the conciliation meeting.

It is also correct that there was no evidence before me as to what allegedly transpired at the conciliation stage. It is for this reason that I am unable to determine the first part of the special plea at this time as I cannot accept what the Applicant says in its submissions transpired at the conciliation. However, I do not see any reason why this question cannot be resolved at trial as a preliminary point through the hearing of evidence facilitated by an order from this Court.

[52] I do, however, respectfully disagree with a number of the other submissions of the Respondent as set out above.

[53] My respectful view and assessment is that the September judgment does find application in casu, particularly in relation to the question whether this Court has the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute/cause of action as pleaded by the Applicant as that question in turn is addressed by what transpired at the conciliation (i.e. what was said at conciliation, what dispute was conciliated between the parties etc.) and how this Court is to deal with a matter where there is uncertainty about the real dispute/s before it.

[54] I also respectfully disagree with the submission that section 191 of the LRA has not been complied with. The Respondent makes reference to paragraph 55 in this regard. Paragraph 54 is probably of more importance, in which the Constitutional Court states the following – “Ultimately, the question is whether – during the conciliation process – the substance of the dispute sought to be conciliated became apparent”. The importance of section 191 in this regard relates to the conciliation or attempt to resolve the issues between the parties – i.e. the substance of the dispute between them as apparent during the conciliation, regardless of the dispute which had been categorised in the LRA form 7.11 as sent to the CCMA. What is significant is not what dispute was referred to the CCMA in a LRA form 7.11 but what the real dispute was between the parties and the substance thereof, which may only become apparent during the conciliation. In relation to section 191, the focus should be on what dispute was ultimately conciliated between the parties and not necessarily what dispute was identified in the LRA form 7.11 sent to the CCMA.

[55] It is apparent from the September judgment that the Constitutional Court has endorsed the position that not everything said during conciliation proceedings is "off the record" notwithstanding the CCMA rules that states that: (i) conciliation proceedings are private and confidential; (ii) are conducted on a ‘without prejudice’ basis; and (iii) no person may refer to anything said at conciliation proceedings during any subsequent proceedings unless the parties agree in writing or as ordered otherwise by a court of law. The Constitutional Court has therefore accepted that this Court can receive and rely on evidence which related to discussions held during the conciliation proceedings relating to the determination of the dispute between the parties.

[56] Whilst the actual settlement negotiations are ‘without prejudice’, what is said about the type or nature of the dispute is not privileged. This means that what was said during conciliation proceedings about the true nature of the dispute/s may be referred to and relied upon in subsequent proceedings to determine the actual dispute/s subsequently if a dispute arises in that regard (like during a trial before this Court).

[57] In relation to whether there is uncertainty about the true nature of the dispute, the majority of the Constitutional Court (a full bench with a single dissenting judgment from Zondo DCJ) has now pronounced that the employee party is not confined to the dispute as framed in the form LRA 7.11 and that the referral of a specific dismissal dispute to conciliation process is not a precondition that must strictly be satisfied before this Court has the necessary jurisdiction to adjudicate that specific dispute.

[58] The September judgment is binding precedent, notwithstanding any criticism from legal commentators and scholars.

[59] In summary, despite the categorization of the dispute by the Applicant in its CCMA referral documents as an unfair labour practice, and the CCMA’s certificate of outcome of dispute indicating that an unfair discrimination dispute was conciliated and was to be referred to adjudication before this Court, this Court has the discretion to grant an order in casu allowing the parties to rely on the record of the conciliation proceedings in order to demonstrate whether or not an automatically

unfair dismissal dispute was also conciliated by the CCMA. I am of the view that the interest of justice warrants disclosure of the conciliating record.

[60] If an automatically unfair dismissal dispute was also conciliated then despite the categorization of the dispute in the CCMA referral

documents and in the CCMA’s certificate of outcome of dispute, this Court would have the necessary jurisdiction to adjudicate an automatically unfair dismissal dispute in addition to the unfair discrimination dispute with which it is currently seized.

[61] The unfair discrimination complained of by the Applicant relates to unfair discrimination against her based on her age.

[62] The section 187(1)(f) ground of discrimination relied on for the purposes of the automatically unfair dismissal dispute is the Applicant’s

age (see paragraph 17.1 of the Applicant’s Statement of Claim).

[63] The Applicant’s age is therefore the basis for both the unfair discrimination dispute / cause of action as well as the automatically

unfair dismissal dispute / cause of action, both of which appear to be intertwined.

The evidence properly before this Court at this time and determining what transpired during the conciliation proceedings

[64] There was no evidence properly before me in relation to what had transpired during the conciliation proceedings. Submissions were made by the Applicant’s representative in this regard. This does not constitute evidence. The same may be said for submissions made by the Respondent’s representative in this regard.

[65] The proceedings were in any event enrolled for the hearing of the special pleas. It is trite that a special plea is proved by extrinsic sources of evidence. The submissions made by the Applicant’s representatives do not fall within the realm of such extrinsic

evidence. A special plea raises issues that are not apparent ex facie the pleading to which they relate (the Applicant’s Statement of Claim in this instance). Therefore, as a general rule, a special plea must be established by the introduction of evidence. The need to introduce evidence is what distinguishes a special plea from an exception. It is also trite that where a defense is raised by way of a special plea, it may either be dealt with at the trial, as a point in limine (first step), or it may be set down to be heard prior to the trial.[28]

[66] In casu, the special pleas were enrolled for hearing prior to the trial. It is now apparent that the second special plea needs to be heard at trial as a point in limine requiring oral evidence in relation to whether or not an automatically unfair dismissal dispute was also conciliated at the

CCMA along with an unfair discrimination dispute.

[67] Save for the CCMA referral documents and the CCMA’s certificate of outcome of dispute, the contents of which were not disputed, no other evidence served before me for the purposes of the second special plea, and in particular, the remaining aspect thereof relating to whether an automatically unfair dismissal dispute was also conciliated at the CCMA besides an unfair discrimination dispute – if yes, then this Court would have jurisdiction to adjudicate both the unfair discrimination dispute and the automatically unfair dismissal dispute; if not, then then this Court would only have jurisdiction to adjudicate the unfair discrimination dispute.

[68] In the circumstances, I am unable to determine on the material properly before me whether or not an automatically unfair dismissal dispute was conciliated by the CCMA and as such I am unable make a decision at this time in relation to whether this Court lacks the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute / cause of action seeing that the Applicant only referred an unfair labour practice dispute to the CCMA and a certificate of outcome of dispute was issued in respect of an unfair discrimination dispute.

[69] That question can be resolved at the commencement of the trial through the presenting of evidence by the parties, should they so wish, in relation to what dispute/s was/were conciliated by the CCMA on 27 January 2020.

Analysis/evaluation - Does this Court lack the necessary jurisdiction to adjudicate the unfair dismissal dispute / cause of action seeing that the dispute which was referred to the CCMA was referred prematurely – i.e. referred before the date of dismissal (although the date of dismissal occurred prior to the conciliation)?

[70] The date of any alleged dismissal is 31 December 2019. The unfair labour practice dispute was referred to the CCMA on 3 December 2019 (before the date of dismissal). The conciliation took place on 27 January 2020 (after the date of dismissal). The Applicant did not refer any dismissal dispute to the CCMA through an LRA 7.11 form. It is, however, possible in light of what has been set out above that a dismissal dispute was conciliated between the parties at the CCMA on 27 January 2020, by which date the alleged dismissal had already taken place.

[71] In addressing the question of the so-called premature referral I will address a number of relevant cases. On a proper interpretation of these cases and this matter, there appear to be three different factual scenarios that may give rise to the allegation of a premature referral of a dismissal dispute:

71.1 where conciliation has taken place before the dismissal;

71.2 where the date of dismissal has been misconstrued by the employee and the technical error needs to be rectified; and

71.3 where the dismissal occurs before the conciliation but after the date of referral of the dispute (in casu).

[72] In terms of section 191(1)(b) of the LRA, a referral of a dispute regarding the fairness of a dismissal to the Commission must be made within 30 days of the date of dismissal or if it is a later date, within 30 days of the employer making the final decision to dismiss the employee under section 191(b) of the LRA.

[73] In terms of section 190(1)(a) of the LRA, the date of dismissal is the earlier of the date on which the contract of employment terminates or the date on which the employee left the service of the employer.

[74] In Paper Printing Wood and Allied Workers Union and others v Nasou-Via Afrika, A Division of the National Education Group (Pty) Ltd,[29] a special plea was raised on the basis that the dismissal dispute was referred to the CCMA prematurely, since the dismissal dispute was referred to the CCMA prior to the employee’s dismissal. The dispute was conciliated (on 29 May 1998) before the date of dismissal (8 June 1998) and this Court referred the dismissal dispute back to the CCMA for conciliation. The issue was not that the dispute had been referred before the date of dismissal but rather that the dispute had been conciliated before the dismissal date – hence the finding of Revelas J that the dispute was not properly before this Court as it had been referred to the CCMA and conciliated prematurely. Clearly the CCMA did have jurisdiction to conciliate a dispute which was referred prior to the date of dismissal provided that the conciliation took place after the date of dismissal and there was a dismissal dispute to conciliate, otherwise the learned judge would not have referred the self-same dismissal dispute back to the CCMA for conciliation. The Court also held that if there is no legal certainty as to when a dismissal dispute may be referred to the Labour Court for adjudication, there is a chance that premature referral may be prejudicial to either of the parties.[30]

[75] Similarly, in CWIU v Darmag Industries (Pty) Ltd[31], the Labour Court held that:

“[22] The first referral, in my opinion, is not a referral about the dismissal of the 22 employees. No dismissal had been effected when the matter was referred for conciliation. Insofar as it may be argued that it was intended to later incorporate a dismissal dispute, the referral in respect of the dismissal for operational requirements was premature and a nullity.”[32]

[76] Again, this matter involved a situation where the date of referral to the CCMA (19 March 1997) predated the date of dismissal (a retrenchment on 27 March 1997) and where the date of conciliation (25 March 1997) also preceded the date of dismissal (just like in Paper Printing Wood supra). The referral in question was in any event a refusal to bargain dispute and not an unfair dismissal dispute. This distinction is, however, by and large rendered moot by the judgment in September supra.

[77] The Court found that the referral of the unfair dismissal dispute was premature and a nullity, and that it thus lacked jurisdiction,

because as at the date of conciliation, there were no dismissals yet and therefore a dismissal dispute could not have been conciliated

(unlike in casu where at the date of conciliation, the Applicant had been dismissed and an unfair dismissal dispute could be conciliated). The Court in Darmag Industries supra did not lack jurisdiction simply because the dispute had been referred to the CCMA before the date of dismissal.

[78] In Helderberg International Importers (Pty) Ltd v Mcgahey NO and others,[33] this Court held that where a dispute had been referred to the CCMA prematurely (i.e. before the date of dismissal in terms of section

190 whilst the employment relationship still existed) the CCMA lacked jurisdiction to deal with the matter. This matter related to an unfair dismissal dispute which had been referred to the CCMA on 26 September 2013. The date of dismissal was 30 September 2013 although the employee had given notice on 30 August 2013, later alleging that he had been constructively dismissed. In casu, we are dealing with an unfair labour practice dispute that had been referred to the CCMA and whether or not an unfair dismissal dispute could have been conciliated on 27 January 2020, and whether such a dispute was conciliated. The former question is easy to answer – it was possible as the dismissal had already taken place by 27 January 2020. Objectively speaking, all the necessary facts that would give the CCMA jurisdiction to entertain an unfair dismissal dispute between the Applicant and the Respondent were in existence by the conciliation date on 27 January 2020.

[79] In her ladyship’s analysis, Rabkin-Naicker J refers to the judgment of the Labour Appeal Court in SA Rugby Players Association and others v SA Rugby (Pty) Ltd,[34] where that Court held as follows:

“[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction. It follows that is there was no dismissal then the CCMA had no jurisdiction to entertain the dispute in terms of section 191 of the Act’.

[80] The employee in Helderberg referred an unfair dismissal dispute to the CCMA at a time when his employment relationship still subsisted. His referral of that unfair dismissal dispute was therefore premature. In casu, however, no unfair dismissal dispute was referred to the CCMA by the Applicant prior to the date of the alleged dismissal – an unfair labour practice dispute was referred. By the time that an alleged unfair dismissal dispute was conciliated on 27 January 2020, as contended by the Applicant, the alleged dismissal had taken place. It cannot be said that the Applicant referred an unfair dismissal dispute to the CCMA prematurely in that the employment relationship still existed at the date of referral (like in Helderberg) as no unfair dismissal dispute was referred prior to 31 December 2019.

[81] The Applicant in casu did not refer an unfair dismissal dispute to the CCMA before her alleged dismissal. The Applicant contends that such an unfair

dismissal dispute was, however, conciliated on 27 January 2020 on a date subsequent to the alleged date of dismissal (31 December 2019). Therefore, objectively speaking, all the necessary facts that would give the CCMA jurisdiction to entertain an unfair dismissal dispute between the Applicant and the Respondent were in existence by the conciliation date on 27 January 2020. As to what dispute or disputes were conciliated on 27 January 2020 is now a question for evidence outside of the contents of the relevant CCMA referral documents in light of the judgment of the Constitutional Court in September supra, which judgment also makes it possible for a party in the position of the Applicant to contend that the true nature of the dispute to be conciliated differs from the dispute that was referred to the CCMA (the CCMA commissioner also then not being bound by a party’s categorization of the nature of the dispute).

[82] In Mthetho and P A Lochner t/a Squeeza,[35] the CCMA held that it had jurisdiction to conciliate a dispute where a dismissal dispute was referred to conciliation (on 12 December

2012) prior to an employee actually being dismissed (on 21 December 2012 / the employee contended that he was dismissed on 11 December

2012), where prior to conciliation proceedings commencing, the employee is dismissed. In that matter, the CCMA commissioner considered the Nasou-Via Africa supra and Darmag Industries supra judgments along with Zeuna-Starker Bop (Pty) Ltd v NUMSA[36] and Halgang Properties CC v Western Cape Workers Association.[37]

[83] In referring to Zeuna-Starker supra, the Commissioner highlighted that Myburgh JP made it clear that the CCMA is under a duty to ensure that it has jurisdiction to conciliate a case before doing so and that the learned judge went on to say the following:

“[6] The commissioner was obliged to enquire into the facts to decide whether he had jurisdiction to conciliate the dispute, He was not bound by the description, and date of the dispute provided by the respondent in the form LRA 7.11. Rather, the commissioner was obliged to examine all the facts in order to ascertain the real dispute between the parties.’[38]

[84] The Commissioner went on to note that the sentiments of Revelas J in Nasou-Via Africa supra were expressed against the background where a conciliation had already been conducted before the dismissal had taken place (not the situation in casu) and that the scenario in Halgang supra was where a commissioner simply rectified for practical purposes a technical error on the LRA 7.11 form – the employee had

misconstrued the date of dismissal and Nicholson JA held as follows: “[16] It seems to me that the error of placing the wrong date on the form resulted in no prejudice to the appellant, who was correct in asserting the latter date as the correct date of dismissal” - (again, not the situation in casu). This is two of the three scenarios referred to above, with the scenario in casu being different – the Applicant did not misconstrue the alleged date of dismissal nor did her conciliation take place before her alleged date of dismissal.

[85] The Applicant did not refer an unfair dismissal dispute to the CCMA prior to her alleged date of dismissal. Therefore, there is no premature referral of an unfair dismissal dispute and I do not find that this Court lacks the necessary jurisdiction to adjudicate such a dispute (i.e. an automatically unfair dismissal dispute) on this specific basis. This Court may well lack such jurisdiction on the basis that such dispute was never conciliated by the CCMA. That is a question for evidence to be considered as a preliminary issue by the trial court.

Conclusion

[86] For the reasons as set out above I do not uphold the first part of the Respondent’s second special plea at this time, relating to this Court lacking the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute as pleaded by the Applicant as that dispute had not been conciliated between the parties by the CCMA prior to it being referred to this Court for adjudication). The first part of the Respondent’s second special plea is not dismissed though and is referred for determination through evidence as a preliminary point at trial.

[87] I dismiss the second part of the Respondent’s second special plea, relating to this Court lacking the necessary jurisdiction to adjudicate the automatically unfair dismissal dispute as pleaded by the Applicant as the referral thereof to the CCMA was premature as at the time of such referral the Applicant was still in the employ of the Respondent and no notice of termination had been issued to the Applicant yet.

Costs

[88] In terms of the provisions of section 162(1) of the LRA, which regulates orders for costs in this Court, I have a wide discretion when it comes to the issue of costs, having regard to the requirements of the law and fairness after taking into account all of the relevant facts and circumstances.

[89] In exercising this judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[39] reaffirmed the principle set in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[40] with regard to costs in employment disputes and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.’

[90] Taking account of all the relevant facts and circumstances and having regard to the requirements of the law and fairness, I do not consider it appropriate to make a costs order, and I exercise my discretion as to costs accordingly.

[91] In the circumstances, and in light of the aforementioned authorities and the evidence and submissions that served before properly me, I make the following order in relation to the Respondent’s second special plea:

Order

1. The first special plea, regarding the late referral of this matter to this Court, has become the subject of an opposed condonation

application and will therefore not be determined. As such the Registrar is requested to enroll the condonation application on the

opposed roll.

2. Should condonation be granted in respect of the late referral to this Court, thereby conferring jurisdiction on this Court, the parties second special plea is referred for determination through evidence as a preliminary point/point in limine at trial;

3. In furtherance of the above, the Court hereby orders that:

3.1 the parties and/or the CCMA commissioner that presided at the conciliation proceedings on 27 January 2020 are permitted to refer to anything said at the conciliation during subsequent proceedings in this Court;

3.2 the parties may call the CCMA commissioner that presided at the conciliation proceedings on 27 January 2020 or any other witness to give evidence about what transpired during conciliation.

4. There is no order as to costs.

M. Sass

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: National Association of South African Workers

(appearance by Mr B Mashego)

For the Respondent: Advocate Willem Bekker

Instructed by: Gildenhuys

Malatji Incorporated

[1] [2000] 1 BLLR 20 (LAC).

[2] Ibid at para 73.

[3] (2010) 31 ILJ 2065 (LC)

[4] [1998] JOL 2345 (LC) at para 25.

[5] Id fn 1 at para 27.

[6] Id fn 1 at para 28.

[7] See: NUMSA and Others v Driveline Technologies (Pty) Ltd (1999) 20 ILJ 2900 (LC) at para 4.

[8] (2015) 36 ILJ 363 (CC).

[9] Ibid at para 9.

[10] Id fn 8.

[11] Id fn 8 at para 1.

[12] Id fn 8 at para 1.

[13] Id fn 8 at para 112.

[14] Id fn 8 at para 32.

[15] Id fn 8 at para 35.

[16] (2020) 41 ILJ 1837 (CC)

[17] Ibid at para 2.

[18] Id fn 8 at para 20.

[19] Id fn 4 at para 24.

[20] (2018) 39 ILJ 987 (CC).

[21] Ibid at para 5.

[22] Id fn 22 at para 6.

[23] Id fn 22 at para 43.

[24] Id fn 22 at para 52.

[25] Id fn 22 at para 54.

[26] Id fn 22 at para 71.

[27] Id fn 22 at para 67.

[28] Fundamental Principles of Civil Procedure, Fourth Edition, C Theophilopoulos et al, pp 326 – 327.

[29] (1999) 20 ILJ 2101 (LC).

[30] Ibid at para 18.

[31] [1999] 8 BLLR 754 (LC).

[32] Ibid at para 20.

[33] [2015] 4 BLLR 430 (LC).

[34] (2008) 29 ILJ 2218 (LAC).

[35] (2013) 34 ILJ 2143 (CCMA).

[36] (1999) 20 ILJ 108 (LAC).

[37] (2002) 23 ILJ 1784 (LAC).

[38] Id fn 35 at para 6.

[39] (2019) 40 ILJ 965 (CC) at para 30.

[40] (2018) 39 ILJ 523 (CC) at para 25.