The first stop is the CCMA

By Aadil Patel, Director, National Practice Head and Samantha Coetzer, Consultant, Employment, Cliffe Dekker Hofmeyr


In the unreported case of the South African Equity Union obo Van Wyk and 100 members v Lodestone confectionary (Pty) Ltd t/a Candy Tops (PS19/16), the Labour Court considered whether an unfair dismissal dispute was required to be referred to the CCMA before the Labour Court could determine the dispute in circumstances where, prior to the dismissal, the CCMA facilitated the parties engaged retrenchment consultations.


In the case, the union referred an unfair dismissal dispute to the Labour Court. The dismissals arose as a result of a large scale retrenchment. When the employer contemplated the dismissal it issued the trade union with the s189(3) notice, inviting it to consult. The employer also requested that the CCMA facilitate the consultations in terms of 189A (3) of the Labour Relations Act, No 66 of 1995.


The employer dismissed the employees for operational requirements after seven facilitated consultation meetings and the parties’ failure to reach consensus on issues. 


After the dismissals, the union failed to refer the dismissal dispute to the CCMA for conciliation. It, instead, approached the Labour Court directly to determine the fairness of the employees’ dismissals for operational requirements. 


The employer argued that the Labour Court did not have the jurisdiction to determine the dispute as the union was required to first refer the unfair dismissal dispute to the CCMA for conciliation before it approached the Labour Court. It argued that there was a requirement that the dispute must be referred to conciliation before the Labour Court can determine it. 


The union argued that since the CCMA was involved in facilitating the retrenchment consultations it was not required to refer that dismissal dispute to the CCMA and that it could approach the Labour Court directly. The Labour Court disagreed.


The Labour Court highlighted the differences between the facilitation and conciliation processes and held that they are two different processes. It held that, “facilitation is held pre-dismissal with a view to avoid unfair retrenchment. Conciliations are held post dismissal in an attempt to resolve the unfair dismissal dispute” 


It also held that, “The Constitutional Court confirmed that the referral of a dispute to the CCMA or bargaining council and the issuing of the certificate of the non-resolution of the dispute constitute the necessary jurisdictional fact for the Labour Court to have jurisdiction over unfair dismissal disputes which include unfair mass retrenchment disputes.”


The union was unsuccessful and the Labour Court held that it that it lacked jurisdiction to determine the dispute. 


This case is important as it confirms that despite the CCMA facilitating parties engaged in retrenchment consultations, an unfair dismissal dispute must still be referred to CCMA or bargaining council before the Labour Court will determine the unfair dismissal dispute. 


For more information please contact Aadil Patel at or Samantha Coetzer at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com





Case Law Summaries and Articles


Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>


Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>


Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>


Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>







Courses and Workshops





 Our Clients 


Android App On Google Play

Android App On Google Play