WHEN CAN AN EMPLOYEE HAVE A RETRENCHMENT DISPUTE ADJUDICATED BY THE CCMA OR A BARGAINING COUNCIL?

Section 191(12) of the Labour Relations Act, Act 66 of 1995 (LRA) stipulates that:

‘An employee who is dismissed by reason of the employer's operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if-

(a) the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189;

(b) the employer‘s operational requirements lead to the dismissal of that employee only; or

(c) the employer employs less than ten employees, irrespective of the number of employees who are dismissed’

In as far as the election contained in section 191(12) of the LRA is concerned the LAC in Bracks NO and Another v Rand Water & another (Rand Water) (2010) 31 ILJ 897 (LAC) at para 9, in relation to the before-amendment section 191(12) explained that:

‘S 191(12) does not expressly pronounce upon the jurisdiction of the CCMA. What the section provides is that when a single employee disputes the fairness of his/her dismissal for operational reasons, and where such a dispute remains unresolved after conciliation, the single employee has a choice either to refer the dispute to the CCMA for arbitration or to the Labour Court for adjudication.’

Though the criteria as denoted in the previous section 191(12) of the LRA has substantially changed, the ratio pertaining to the election as contained in the Rand Water dicta holds true.

As early as 2013, the LC in Latinsky & Co (Estate Late JE Latinsky) v Mooi NO & others (2013) 34 ILJ 2613 (LC) at para 12, recorded that:

‘The wording of s 191(12) admits a considerable degree of ambiguity. But the one thing that does not provide, contrary to what the applicant contends, is that the jurisdictional moment it creates lies in the reason for dismissal. The reason for dismissal is a given - what is relevant is the existence or otherwise of a consultation procedure initiated in respect of a single employee.’

Further and in Famous Brands Management Company (Pty) Ltd v CCMA & others (2016) 37 ILJ 2857 (LC) at para 19, albeit obiter, the LC held that:

‘I am unconvinced that section 191(12) of the LRA is of assistance to the employer. The pre-amended wording led to conflicting views concerning whether one or more persons had been contemplated. The amended wording in certain circumstances allow more than one retrenched employee (arguably up to 9) to pursue a complaint of unfair dismissal in arbitration before the CCMA.’

Finally and in PGC Group of Companies (Pty) Ltd v CCMA & others [2018] ZALCJHB 460 at paras 17 and 18, the LC in no uncertain terms clarified that:

‘The purpose of the relevant subsection is to ensure that the objects of the LRA are achieved. It calls for a speedy resolution of disputes. It is regrettably well known that matters before the Labour Court are dealt with in a much longer period of time than those before the CCMA. The purpose of this subsection therefore is to have matters resolved by the CCMA under those circumstances set out in subsection (12). A further consideration is to save costs. Requiring a single, more often than not unsophisticated, retrenched employee (section 191(12(b)) to refer his dispute to the Labour Court may well mean the end of the dispute. The cost factor is also evident from the provision that gives an election to the employee where his employer employs less than 10 employees. Those are small employers. There is no reason why the same considerations should not apply to the interpretation of section 191(12)(a). The first submission, that section 191(12)(a) cannot apply when more than one employee is dismissed for operational reasons, cannot be correct. Section 191(12)(a) must cater for a different scenario than subsection (b). Subsection 191(12)(a) finds its application where more than one employee is dismissed for operational requirements ,and the employer has followed a consultation procedure that applied to that employee only.’