Numsa and Others v SA Five Engineering and Others (C 1061/02) [2004] ZALC 81; [2005] 1 BLLR 53 (LC); (2004) 25 ILJ 2358 (LC) (2 November 2004)

Numsa and Others v SA Five Engineering and Others (C 1061/02) [2004] ZALC 81; [2005] 1 BLLR 53 (LC); (2004) 25 ILJ 2358 (LC) (2 November 2004)

The Labour Court lacks jurisdiction to adjudicate disputes concerning the substantive fairness of dismissals under section 189A(8)(b)(ii)(bb) read with sections 191(11) and 191(5)(b) unless the dispute has first been referred to conciliation and remains unresolved. The power of condonation under section 191(11)(b) is limited to late referrals and does not extend to waiving the statutory requirement of conciliation. Section 189A(18) further restricts the court from adjudicating procedural fairness in disputes referred under section 191(5)(b)(ii). The prior order purporting to condone non-compliance with conciliation was mistaken and is varied accordingly. The procedural fairness dispute...

Citation
[2004] ZALC 81
Parties
Applicant: NUMSA & Others; Respondent: SA Five Engineering & Others
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
2 November 2004
Case Number
C 1061/02
Procedural Posture
Urgent Application / Postponement and Jurisdictional Ruling
Outcome
The application in terms of section 189A(13) is referred to oral evidence and postponed sine die. The court lacks jurisdiction to adjudicate the substantive fairness dispute until conciliation requirements are met. No order as to costs.
Judges
Murphy AJ
Legal Topics
Operational Requirements Dismissal, Procedural Fairness, Conciliation Requirement, Jurisdiction of Labour Court
Labour Law Operational Requirements Dismissal Procedural Fairness Conciliation Requirement Jurisdiction of Labour Court

Case Brief

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Parties

NUMSA & Others

Applicant

SA Five Engineering & Others

Respondent

Procedural Posture

Urgent Application / Postponement and Jurisdictional Ruling

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to adjudicate substantive fairness of dismissals absent prior conciliation.
  2. 2 Whether the court can condone non-compliance with the statutory requirement of conciliation before adjudication.
  3. 3 Whether procedural fairness disputes under section 189A(13) may proceed independently of substantive fairness disputes.

Ratio Decidendi

The Labour Court lacks jurisdiction to adjudicate disputes concerning the substantive fairness of dismissals under section 189A(8)(b)(ii)(bb) read with sections 191(11) and 191(5)(b) unless the dispute has first been referred to conciliation and remains unresolved. The power of condonation under section 191(11)(b) is limited to late referrals and does not extend to waiving the statutory requirement of conciliation. Section 189A(18) further restricts the court from adjudicating procedural fairness in disputes referred under section 191(5)(b)(ii). The prior order purporting to condone non-compliance with conciliation was mistaken and is varied accordingly. The procedural fairness dispute...

Court Disposition

The application in terms of section 189A(13) is referred to oral evidence and postponed sine die. The court lacks jurisdiction to adjudicate the substantive fairness dispute until conciliation requirements are met. No order as to costs.

Orders

  • The applicant's application in terms of section 189A(13) is referred to the trial roll in terms of rule 7(8) for the hearing of oral evidence in relation to the disputes of fact appearing on the papers.
  • It is declared that this court lacks jurisdiction to adjudicate the dispute concerning whether there is a fair reason for dismissal until such time as the applicants comply with the provisions of the Act relating to the conciliation of the dispute.