4 July 2009 by

The retrenched employee - more confusion

In 2007 the Labour Court (the Court) ruled that individual employees are unable to challenge the procedural unfairness of their retrenchments at the CCMA. In 2008 the Court handed down a converse ruling. Employees are now confused as a result of this legal wrangling.

In Rand Water v Bracks NO & Others [2007] JOL 2009 1 (LC), Nel AJ held that in matters that concern the dismissal of a single employee for operational reasons in terms of Section 191(12) of the Labour Relations Act, 1995 (the LRA), the CCMA has jurisdiction only where the dispute centres on substantive fairness. Where the issue to be determined concerns procedural fairness, the CCMA has no jurisdiction and such matters must be referred to the Court. The Bracks judgment was not followed in the subsequent case of Scheme Data Services (Pty) Ltd v Myhill NO & Others [2008] ZALC 149 (5 December 2008).

Both cases centered on the interpretation of Section 191(12) of the LRA, which deals with the dismissal of a single employee by reason of operational requirements. In the Bracks case the Court applied a purposive approach to the interpretation of Section 191(12) and held that if the legislature intended the CCMA to have jurisdiction to hear a dismissal of a single employee dismissed by reason of operational requirements only, Section 191(12) would not have contained the words "following a consultation procedure in terms of Section 189 of the LRA that applied to that employee only".

The Court reasoned that most of the complexity in operational dismissal cases turned on the compliance or non-compliance with Section 189 procedures. As it was the intention of the legislature that the CCMA should only deal with relatively simple cases that could be speedily adjudicated, more complex issues involving matters of procedure are best dealt with in the Court.

Ngalwane J in Scheme Data Services rejected the Court's reasoning in the Bracks judgment and held that on a plain reading of the text, Section 191(12) does not permit the construction applied by Nel AJ. There is no need for severing or excising the relevant wording from the clause as the plain meaning of the section is clear. The LRA clearly gives employees a choice of approaching either the CCMA or the Court. It is not for the Court to decide that procedural issues in Section 189 dismissals are too complex for the CCMA to handle. That is a policy issue only the legislature can make.

There are now two conflicting decisions handed down by the Court. As the matter stands at present and until a higher court decisively rules on this matter, employees should take cognisance of this conflict in order to avoid possible preliminary points of jurisdiction being raised at the CCMA. The matter is currently before the Labour Appeal Court, which will hopefully bring an end to this uncertainty.

Aadil Patel and Carike Lemboe

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