Section 189A(7)(b)(ii) of the Labour Relations Act 66 of 1995 (LRA) prescribes that an employee may refer a dispute concerning their dismissal to the Labour Court (LC) in terms of section 191(11) of the LRA following a facilitated large-scale retrenchment. This in turn implicates section 191(5)(b), with the result of these interlocking provisions being that a referral to the LC may be instituted if the referring party is armed with a certificate of non-resolution of conciliation, or 30 days have passed since the referral to conciliation. A controversy developed regarding this process in the judgments of Edcon v Steenkamp and Others [2015] (4) SA 247 (LAC) and the National Union of Metalworkers of SA on behalf of Members and Others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC) where it was held that, without more, the issuance of a termination notice in terms of section 189A(7)(a) of the LRA after the 60-day facilitation period triggers the right to refer a dispute to the LC without the need to refer the dismissal dispute to conciliation.

LAC’s finding

The LAC has decisively rejected this view by holding that that there is a functional distinction between facilitation and conciliation. A shift from a contestation about interests to a contestation about rights occurs when there is a move from facilitation to conciliation. The issues canvassed in the retrenchment facilitation will likely be distinguishable from the issues brought before the LC in the retrenchment dismissal (being the cause of a fresh dispute).

Section 189 of the LRA was found to be concerned only with what should happen during the consultation or facilitation process. It is not the locus on what may happen after consultation or facilitation has concluded.

In the result, the court held that a proper interpretation of section 189A(7)(b)(ii) is that, notwithstanding the facilitation process, a referral to conciliation is a jurisdictional prerequisite for a referral of the dismissal dispute to the LC.