September & others // CMI Business Enterprise CC [2018] ZACC

Rule 16 of the Commission for Conciliation, Mediation and Arbitration (“CCMA”) confirms that the information discussed during conciliations is private and confidential and may not be disclosed in subsequent proceedings. However, the Constitutional Court (“CC”) has confirmed that in certain instances where it would assist in determining the true nature of the dispute, information disclosed during such conciliation discussions may be raised in subsequent proceedings.     

In the above mentioned case, the Applicants commenced employment with Respondent during August 2009 as general workers. The Respondent operated its business within the mining industry. During September 2013 the Applicants resigned and alleged it was due to the Respondent making their continued working conditions intolerable as a result of racial discrimination. The Applicants referred (a) unfair labour practice and (b) unfair discrimination disputes to the CCMA.

CCMA: At conciliation, which both parties attended, it became clear that the dispute was primarily one of constructive dismissal due to racial discrimination. This was canvased to some extent during the proceedings. The commissioner issued a certificate of outcome citing the dispute as unfair discrimination in terms of section 6 and 10 of the Employment Equity Act and referred it for adjudication to the Labour Court (“LC”). 

Labour Court: At the LC the Applicants sought an order confirming their resignations amounted to an automatically unfair dismissal based on racial discrimination. While the Respondent opposed the claim alleging Applicants absconded and the LC did not have jurisdiction to adjudicate the dispute it did not do so in accordance with the rules and a default judgment was granted in the Applicants’ favour. LC held that the Applicants were constructively dismissed as they were forced to work in intolerable conditions which entailed racial abuse and discrimination. LC further held that as the dismissal was based on their race, the dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act and granted twenty-four (24) months compensation for each Applicant. 

Respondent applied for rescission based on, inter alia, (i) that the nature of the dispute had changed from the disputes referred to the CCMA and (ii) the LC lacked jurisdiction to adjudicate the matter. Applicants maintained that the true nature of the dispute became apparent during conciliation and is ‘constructive dismissal due to unfair discrimination’. LC held the nature of the dispute is either (i) what is identified in the certificate of outcome or (ii) what the commissioner identified during the proceedings. LC found that it would frustrate the functions of the commissioner if the nature and the description of the dispute in the referral form were strictly interpreted. LC did not grant rescission but permitted the Respondent leave to appeal.  

Labour Appeal Court (“LAC”): The main issue before the LAC was whether ‘constructive dismissal based on unfair discrimination had been conciliated before the referral to the LC.’. LAC relied on National Union of Metal Workers of South Africa v Driveline [1999] ZALC 157; 2000 (4) SA 645 (LAC) (“Driveline”) reasoning that (i) where the real issue was conciliated, the employee’s statement can be amended to broaden the issue’s characterisation and (ii) conciliation is a precondition to the LC’s jurisdiction and where a dispute arises as to whether or not the real dispute was conciliated, it is a factual enquiry which must be conducted by reviewing the facts of the relevant matter, i.e. the characterisation of the despite on the referral form and the contents of the certificate of outcome. 

LAC held that –

  1. the dispute referred was not one of unfair dismissal based on unfair discrimination but only an unfair discrimination dispute as Applicants did not consider themselves dismissed; 
  2. LC erred in (i) concluding an unfair dismissal dispute had been conciliated as it was not supported by evidence and (ii) assuming jurisdiction.

Constitutional Court: CC noted that commissioners have three functions, namely; (i) to resolve disputes, (ii) to identify the nature of the dispute, and (iii) make recommendations to the parties. These functions are not merely clerical and inevitable call for application of the mind, discretion and some adjudication. 

The CC held that the LAC had adopted an overly formalistic approach and that it had failed to take into account the purpose and context of the LRA  and provided dispute resolution mechanisms and cautioned against a narrowly textual and legalistic approach. The main purpose of the conciliation is to promote frank discussion and possible settlement is not achieved by interpreting the rule as a blanket ban on evidence led at conciliation proceedings. CC held that the evidence that the CCMA conciliated the true dispute, namely automatic unfair constructive dismissal caused by unfair discrimination was admissible before the LC. CC upheld the Applicant’s appeal and the LAC discussion was set aside. The decision of the LA was the correct decision. 

Based on the above judgment the following key points can be summarised –

  1. While the referral form may state a certain type of dispute, it is the commissioner’s responsibility to hear the matter and determine the true nature of the dispute;
  2. According to Driveline, the dispute cited on the certificate of outcome is a guideline and, while it is important as it reflects the commissioner applying his/her mind to (i) the true nature of the dispute, the employees statement may be amended to broaden the characterisation of the issues in dispute; and 
  3. Where such conciliation discussions assist in narrowing down the issues in dispute as well as the nature of the dispute, this evidence may be used in subsequent proceedings. 

Candace Bachmann – Associate Attorney

Justine Del Monte & Associates Incorporated