NUMSA and Others v Industrial OLEO Chemical Products (D274/21) [2022] ZALCD 14 (6 May 2022)

NUMSA and Others v Industrial OLEO Chemical Products (D274/21) [2022] ZALCD 14 (6 May 2022)

The court found that, in the context of a facilitated retrenchment under section 189A(7) of the Labour Relations Act, the legislature did not require a referral to conciliation before approaching the Labour Court. The references in section 189A(7)(b)(ii) and section 191(11) envisage prior involvement by a facilitator, and the Facilitation Regulations support direct referral to the Labour Court within 90 days of termination. The applicants provided a reasonable explanation for the delay, including union staff changes and the impact of the Covid-19 pandemic. The prospects of success could not be excluded on the papers, as there was a factual dispute regarding the retrenchment process and...

Citation
[2022] ZALCD 14
Parties
Applicant: NUMSA First; Applicant: Bhekabantu Mjweni and 5 Others; Respondent: Industrial OLEO Chemical Products
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
6 May 2022
Case Number
D274/21
Procedural Posture
Condonation Application / Application for Condonation for Late Referral of Unfair Dismissal Dispute
Outcome
Condonation for the late filing of the statement of claim is granted.
Judges
Hiralall
Legal Topics
Unfair Dismissal, Condonation, Retrenchment, Facilitation Process, Jurisdiction, Conciliation Requirement
Labour Law Unfair Dismissal Condonation Retrenchment Facilitation Process Jurisdiction Conciliation Requirement

Case Brief

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Parties

NUMSA First

Applicant

Bhekabantu Mjweni and 5 Others

Applicant

Industrial OLEO Chemical Products

Respondent

Procedural Posture

Condonation Application / Application for Condonation for Late Referral of Unfair Dismissal Dispute

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to adjudicate the unfair dismissal dispute without prior referral to conciliation.
  2. 2 Whether condonation should be granted for the late filing of the statement of claim.

Ratio Decidendi

The court found that, in the context of a facilitated retrenchment under section 189A(7) of the Labour Relations Act, the legislature did not require a referral to conciliation before approaching the Labour Court. The references in section 189A(7)(b)(ii) and section 191(11) envisage prior involvement by a facilitator, and the Facilitation Regulations support direct referral to the Labour Court within 90 days of termination. The applicants provided a reasonable explanation for the delay, including union staff changes and the impact of the Covid-19 pandemic. The prospects of success could not be excluded on the papers, as there was a factual dispute regarding the retrenchment process and...

Court Disposition

Condonation for the late filing of the statement of claim is granted.

Orders

  • Condonation is granted in respect of the late filing of the applicant’s statement of claim.
  • There is no order as to costs.