Can the CCMA hear disputes regarding the procedural fairness where a single employee is retrenched?

Posted: April 6, 2010 in Uncategorized

The Labour Court in Rand Water v Bracks NO and Others found that section 191(12) of the Labour Relations Act, allowed single employees to refer only disputes concerning the substantive fairness of their retrenchments to either the CCMA / Bargaining Council or the Labour Court.  The Court a quo argued that where the dispute related to the procedural aspects of the retrenchment of a single employee, only the Labour Court would have jurisdiction.

The Labour Appeal Court (per Jappie JA in Bracks NO and Another v Rand Water and Another (JA 2/08)) however found that “[s]ection 191(12) was introduced by way of an amendment by s 46(i) of Act 12 of 2002. The explanatory memorandum to the amending act states at paragraph 2.46 that s 191 is to been amended ‘to provide that if only one employee is dismissed for operational requirements the employee is able to refer the dispute up after conciliation to the Labour Court or to Arbitration.’ There is no indication that it was the intention of the legislature to limit a single employee’s election to dispute that can be referred to arbitration to cases where only the substantive fairness is placed in issue. My view is that the legislature intended to give a single retrenched employee, who may not be able to afford the legal costs of Labour Court litigation, the opportunity to have his/her unfair dismissal dispute resolved by arbitration. That appears to be the plain purpose of s 191(12). The court a quo therefore erred in placing upon s 191(12) a construction which limited a single employee’s election to either approach the CCMA or the Labour Court where both the substantive and procedural fairness of his/her dismissal for operational reasons are placed in issue” (at §12)

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