03/06/2026
⚖️ Constitutional Court Case Law Update: LRA 189A: National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026). ⚖️
On Friday, 29 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Labour Appeal Court (LAC). The application concerns the Interpretation of section 189A(7)(b)(ii) of the Labour Relations Act (LRA).
The crux of the matter is whether section 189A(7)(b)(ii), read with section 191(11), of the LRA gives the Labour Court (LC) jurisdiction to adjudicate over unfair dismissals occasioned by operational requirements, without the dispute having to first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a council, when parties have already undergone a failed facilitation process.
In 2020 the employer retrenched the employees for operational reasons under LRA section 189A, resulting in their dismissal in July 2020. The employees successfully challenged the process on an urgent basis under section 189A(13) and argued that the facilitation meetings had predetermined the dismissals and denied them an opportunity to make representations. They were reinstated and a fresh consultation process was conducted, but they were ultimately dismissed again on 12 November 2020.
Following the employees’ dismissal, the employees referred the dispute to the LC in terms of LRA section 189A(7)(b)(ii). The employer then raised a preliminary issue of jurisdiction, submitting that the LC did not have jurisdiction to hear the matter as employees were required to first refer the unfair dismissal dispute to the CCMA or a council before they could approach the LC.
The LC dismissed the employer’s preliminary point and said that it is not necessary to refer a dispute to conciliation once a facilitation process in terms of section 189A of the LRA has already taken place.
The LAC found differently. It held that a referral to the CCMA is mandatory after the failure of a facilitation process.
The Constitutional Court, by majority, in this case clarified the procedural pathway to the LC following a failed facilitation under section 189A of the LRA. 📄
The Constitutional Court distinguished pre-dismissal facilitation from post-dismissal conciliation, and the majority of the Constitutional Court judges set aside the LAC's contrary ruling and remitted the matter for determination on the merits. 📄
The Court held that LRA section 189A(7)(b)(ii), read with section 191(11), permits parties to refer an operational-requirements dismissal directly to the LC, without first referring the dispute to the CCMA or a council for conciliation. 🚩📄
📄 🔗📃 The read a pdf copy of the judgement visit our LinkedIn page on the following link: → https://www.linkedin.com/feed/update/urn:li:activity:7467877213858893825
⚖️LWO is here to help members navigate these changes and ensure compliance with the law. ⚖️
📧[email protected] | 🌐www.lwo.co.za |📱0861 101 828
⚖️Disclaimer: This information is not intended as legal advice and is given for information purposes only. We accept no liability for any loss suffered from reliance on this information. Due to the complexity and sensitivity of these situations and depending on the facts of each case, different remedies and procedures may apply, it is therefore always advised that the employer seek expert labour law assistance and advice to ensure that the correct processes are followed and to limit the business and employer’s risk.
⚖️ Constitutional Court Case Law Update: LRA 189A: National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026). ⚖️ On Friday, 29 May 2026, the Constitutional Court handed down judgment in an application for leave to ...
