1 July 2009

Do not stop at the CCMA, pass and proceed directly to the Labour Court

Ordinarily, employees who wish to challenge their dismissals for misconduct must approach the Commission for Conciliation, Mediation and Arbitration (the CCMA) for conciliation followed by arbitration.

In the recent decision of Ngutshane v Arivia Kom (Pty) Ltd t/a Arivia Kom & Others the Labour Court (the Court) considered whether it has jurisdiction as a court of first instance to review the decision of a public employer to dismiss the employee.

Ann Ngutshane (the employee) was an employee in the public sector. She was dismissed for allegations of fraud. After her dismissal, the employee sought to review her employer's decision and approached the Court, prior to exhausting the dispute resolution procedures of the CCMA.

The employee relied on section 158 (1) (h) of the Labour Relations Act, 66 of 1995 (the LRA) which provides "the Labour Court may review any decision or any act performed by the State in its capacity as employer, on such grounds as are permissible by law."

The Court found that it had no jurisdiction because the reason for the termination was misconduct. Accordingly, the nature of the dispute was the fairness of the dismissal and as such, the dispute should be conciliated and arbitrated.

Relying on the judgment of Chirwa v Transnet Ltd & Others, the Court found that a hierarchy of forums exist in terms of the dispute resolution procedures prescribed by the LRA.

In the instance of dismissal disputes, an employee must first approach the CCMA and only once the dispute resolution procedures are exhausted, may the employee approach the Court. The provisions of section 158(1)(h) of the LRA apply only in circumstances where the LRA offers no other remedy e.g. where employment terminates by operation of law.

The application was launched on an urgent basis. The Court found that "dismissed employees should also not be allowed to steal an advantage by launching urgent applications to review decisions to dismiss and thereby cut the queue of dismissal cases...."

The Court further held that it would also be discriminatory to allow public sector employees the option to both review and to conciliate and arbitrate dismissal disputes; whilst private sector employees are without (and perhaps cannot afford) such remedy.

Whilst the case deals with the public sector employee, the principles expounded therein are equally applicable to private sector employees.

Chirwa confirmed per Ngcobo, J that "There is no longer a distinction between private and public sector employees under our Constitution."

The effective resolution of dismissal disputes for misconduct is through conciliation and mediation under the auspices of the CCMA of Bargaining Council. Employees may not steal an advantage and approach the Court directly, except where there is no other appropriate redress.

Melanie Hart and Neil Comte

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