In early 2020, Industrial Oleo Chemical Products embarked on a large scale retrenchment exercise on operational grounds, which resulted in the dismissal of the individual applicants (“employees”) in July 2020. The employees, represented by NUMSA, first approached the Labour Court on an urgent basis under section 189A(13), alleging that the employer had pre-determined who would be retrenched and had denied them an opportunity to make representations. They were reinstated, and a fresh facilitation process commenced. The second facilitation also failed, and the employees were dismissed on 12 November 2020.
The employees then referred the dispute directly to the Labour Court in terms of section 189A(7)(b)(ii). The employer raised a preliminary point that conciliation before the CCMA or a bargaining council was a jurisdictional prerequisite, and that the Labour Court therefore lacked jurisdiction. The Labour Court dismissed the preliminary point, reasoning that if conciliation were required, the Legislature would have referred to section 191(1) rather than section 191(11). The Labour Appeal Court (“LAC”) reversed that finding, holding that facilitation and conciliation are functionally distinct, that a dismissal dispute is a fresh dispute from the consultation process, and that conciliation remained mandatory before referral to the Labour Court. NUMSA and the dismissed employees sought leave to appeal to the Constitutional Court.
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