Conciliation after failed facilitation: The Constitutional Court clarifies the route to the Labour Court in large scale retrenchments

In National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products ZACC 22, the Constitutional Court was asked to decide a question that has been of interest in relation to mass or large scale retrenchment: where a section 189A facilitation process has failed, must dismissed employees refer their dismissal dispute to conciliation before they can approach the Labour Court for adjudication? In the majority judgment, the Court held that conciliation is not a jurisdictional precondition in this context, and that section 189A(7)(b)(ii) of the Labour Relations Act 66 of 1995 (LRA) permits a direct referral to the Labour Court once facilitation has failed.