Tommy-Nel v Boldr (Pty) Ltd

Citation: [2026] ZALCCT 44 

Court: Labour Court of South Africa, Cape Town

A. Nature of Proceedings

This was an application for default judgment pursuant to a statement of claim delivered by the Applicant acting "in person"  following prior proceedings before the Commission for Conciliation, Mediation and Arbitration ("CCMA").

B. Material Facts

1. The dispute concerned the Applicant's dismissal for operational requirements.

2. The Applicant referred the dispute to the Labour Court in terms of section 191(5)(b)(ii) of the LRA.

3. The referral to the CCMA was made on 18 June 2024; conciliation was held on 11 July 2024; the Applicant elected arbitration, which was held on 23 September 2025.

4. Commissioner Martin Rabie, on 29 September 2025, ruled that section 191(12) of the LRA did not apply where an employer dismissed more than one employee within a 12-month period with a workforce exceeding 10 employees, and accordingly held the CCMA lacked jurisdiction, affording the Applicant opportunity to refer the matter to the Labour Court.

C. Legal Framework

1. Section 191(12) of the LRA: Provides:

"if an employee is dismissed by reason of the employer's operational requirements following a consultation procedure in terms of Section 189 that applied to the employee only, the employee may elect to the further dispute either to Arbitration or to the Labour Court".

2. Interpretation

As noted at paragraph [6], citing Scheme Data Services (Pty) Ltd v Myhill NO and Others [2009] 4 BLLR 381 (LC) and Bracks NO and Another v Rand Water and Another (JA 2/08) [2010] ZALAC 4:

"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."

3. Purposive Interpretation

Citing Bracks supra at paragraph 11, the Court affirmed at paragraph [7]:

"It is trite that the LRA must be interpreted purposively to give effect to an expeditious resolution of labour disputes."

4. Time Limits and Jurisdiction

Section 191(11)(a) requires referral in terms of section 191(5)(b) be made within 90 days after certification that the dispute remains unresolved. As held in NUM v Hernic Exploration (Pty) Ltd [2003] 4 BLLR 319 (LAC) at paragraph [45], followed in National Union of Metalworkers of SA and another v BMW (SA) (Pty) Ltd (2019) 40 ILJ 1818 (LC):

"jurisdiction is conferred on this Court in terms of section 191(5)(b) read with section 191(11) of the LRA when the CCMA (or the council with jurisdiction, as the case may be), issues a certificate that the dispute remains unresolved... a referral outside of the time periods means that the Court is divested of jurisdiction."

D. Court's Findings

1. The Court expressed doubt regarding Commissioner Rabie's interpretation of section 191(12) but deemed it unnecessary to elaborate further (paragraph [8]).

2. Critically, the Applicant failed to refer the matter to the Labour Court within the prescribed 90-day period triggered by the certificate of outcome (paragraphs [9]–[10]).

3. Consequently, the Court was divested of jurisdiction to entertain the default judgment application.

E. Disposition

Mindful of its obligation under section 158(1)(a)(ii) of the LRA to avoid permanently closing the door on the Applicant, the Court ordered:

1. The Applicant is ordered to apply for condonation for the late filing of her statement of claim within 30 days from the date of the order;

2. The Respondent is ordered to file its statement of response accompanied by an application for condonation for the late filing thereof within 15 days of receipt of the application for condonation;

3. No order as to costs.