Constitutional Court clarifies Labour Court jurisdiction after failed section 189A facilitation
By Doctor Cithi and Sibusiso Mlangeni
On 29 May 2026, the Constitutional Court delivered a landmark judgment in National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products [2026] ZACC 22 (29 May 20260, addressing a significant question in labour law: whether the Labour Court has jurisdiction to entertain a referral made directly to it following a failed facilitation process under section 189A(7)(b)(ii) of the Labour Relations Act 66 of 1995 (“LRA”). The sole issue before the Court was the proper interpretation of section 189A(7)(b)(ii), read with section 191(11) of the LRA.
The judgment resolves a controversy that had long troubled the Labour Court regarding the proper interpretation of section 189A(7)(b)(ii), read with section 191(11) of the LRA. These provisions produced two irreconcilable lines of authority in the Labour Court.
Tabacks acted for the respondent, Oleo, throughout the litigation.
Background of the Case
The case arose from a large-scale retrenchment undertaken by Industrial Oleo Chemical Products (“Oleo”) in 2020 for operational requirements. Several employees, including the second to seventh applicants, were dismissed. The employees initially approached the Labour Court (“LC”) on an urgent basis, alleging procedural unfairness during the facilitation process. They were reinstated, and a fresh section 189A consultation process commenced, which ultimately resulted in their dismissal.
Following their dismissal, the employees referred the dispute to the LC under section 189A(7)(b)(ii) of the LRA. Oleo raised a preliminary point, contending that the LC lacked jurisdiction because the employees had not first referred the unfair dismissal dispute to conciliation as contemplated in section 191(11) of the LRA.
The LC dismissed Oleo’s preliminary point, holding that where a facilitation process has already taken place under section 189A, a further referral to conciliation is unnecessary. Its reasoning was that, had conciliation been required, the LRA would have directed parties to proceed in terms of section 191(1), rather than section 191(11). (The judgment of the LC is reported as NUMSA and Others v Industrial OLEO Chemical Products (D274/21) [2022] ZALCD14 (6 May 2022).
On appeal, the Labour Appeal Court (“LAC”) overturned the LC’s decision and found in favour of Oleo. It held that referral of the dismissal dispute to the CCMA or a bargaining council for conciliation is mandatory following the failure of a section 189A facilitation process. The LAC drew a functional distinction between facilitation and conciliation, and reasoned that an unfair dismissal dispute is distinct from the consultation process under section 189A. Relying on the Constitutional Court’s decision in Ngululu the LAC held that section 191 requires unfair dismissal disputes to be referred to conciliation and that the LC’s jurisdiction to adjudicate is deferred until conciliation has been completed. (The LAC’s full judgment is reported as Industrial Oleo Chemical Products v National Union of Metalworkers of South Africa [2024] ZALAC 53; [2025] 1 BLLR 1 (LAC); (2025) 46 ILJ 3288 (LAC).
NUMSA and the dismissed employees then approached the Constitutional Court (“CC”) to challenge the LAC’s interpretation of section 189A(7)(b)(ii) of the LRA.
Issues Before the Constitutional Court
The central issue before the Constitutional Court was whether section 189A(7)(b)(ii) of the LRA requires parties, following a failed facilitation process, first to refer the dismissal dispute to conciliation before approaching the LC. If not, the Court also had to determine the purpose of the reference to section 191(11) in section 189A(7)(b)(ii).
The Court’s Decision
The Court unanimously held that its jurisdiction was engaged because the matter concerned the interpretation of the LRA and raised arguable points of law of general public importance, as contemplated in section 167(3)(b)(ii) of the Constitution. Given the conflicting interpretations adopted in earlier Labour Court decisions, the Court considered it to be in the interests of justice to provide clarity.
The Court was divided on the interpretation of section 189A(7)(b)(ii). Justice Tshiqi, writing for the majority (Kollapen J, Mathopo J, Mhlantla J and Rogers J concurring), held that conciliation is not a mandatory precondition to referring a mass retrenchment dispute to the Labour Court after a failed facilitation process.
Majority Judgment: Conciliation Not Mandatory
Interpretation of section 189A(7)(b)(ii)
Justice Tshiqi held that section 189A(7)(b)(ii) expressly permits employees to refer a dismissal dispute directly to the Labour Court after a failed facilitation process. On this interpretation, the provision itself confers jurisdiction. The reference to section 191(11), the majority held, serves only as a time clause, requiring referral within 90 days of receipt of the notice of dismissal.
The majority reasoned that requiring conciliation after facilitation would create unnecessary duplication and delay, thereby undermining the purpose of section 189A, which was introduced to expedite the resolution of mass retrenchment disputes. Because facilitation and conciliation cover, at least in part, the same terrain concerning the fairness of retrenchment dismissals, the additional referral contended for by Oleo was regarded as duplicative.
The majority further noted that, where there has been no facilitation, section 189A(8) treats conciliation as the functional equivalent of facilitation. It reasoned that, had the legislature intended conciliation to follow a failed facilitation process, it would have said so expressly.
The majority rejected Oleo’s reliance on Intervalve, holding that the case concerned an ordinary dismissal dispute rather than a mass retrenchment dismissal regulated by section 189A(7)(b)(ii).
Justice Tshiqi also emphasised the distinction between facilitation and conciliation. Facilitation is forward-looking and aimed at avoiding retrenchments, whereas conciliation is backward-looking and directed at resolving disputes after dismissals have occurred. The majority therefore concluded that the Labour Court’s jurisdiction is engaged directly under section 189A(7)(b)(ii), without any requirement of prior conciliation. It further held that, in the context of retrenchment dismissals under section 189A, section 189A(7)(b)(ii) and section 189A(8)(b)(ii)(bb) are the jurisdiction-conferring provisions, while section 191(11) functions only as a time clause. On that basis, the 90-day period runs from receipt of the dismissal notice following the facilitation process and the expiry of the 60 days from the original section 189(3) notice. The majority held that the same approach applies under section 189A(8).
Minority Judgment: Conciliation is Required
Justice Theron (with Maya CJ, Majiedt J and Musi AJ concurring) concluded that the LAC was correct in holding that section 189A(7)(b)(ii) of the LRA requires referral to conciliation before an unfair dismissal dispute may be referred to the LC.
The minority held that section 189A(7)(b)(ii) incorporates section 191(11), which in turn refers to section 191(5)(b) and, by implication, to section 191(1). In the minority’s view, legislation commonly incorporates complex procedures by cross-reference rather than repetition, and section 189A(7)(b)(ii) should be understood in that way.
The minority agreed that section 189A(7)(b)(ii) assigns jurisdiction to the LC but differed from the majority in holding that the section does so only in relation to disputes referred to the Court “in terms of section 191(11)”.
The minority also rejected the employees’ interpretation of section 191(11), describing it as a marked departure from the statutory text and inconsistent with the interpretive principle that each word in a legislative provision should be given meaning.
On this interpretation, the minority concluded that referral to conciliation is a necessary step before the dispute may be referred to the LC. Justice Theron emphasised the role of conciliation within the LRA framework as a mechanism to reduce conflict, limit litigation costs and promote labour peace.
Justice Theron further observed that pre-dismissal facilitation and post-dismissal conciliation are qualitatively different processes serving distinct purposes. Facilitation is aimed at avoiding retrenchments, whereas conciliation addresses the fairness of dismissals after they have taken place.
Justice Theron concluded that the Labour Appeal Court’s interpretation of section 189A(7)(b)(ii) was correct and should be upheld.
The judgment has significant implications for labour law in South Africa. Most importantly, it confirms that employees who have undergone a failed facilitation process in a mass retrenchment dispute may approach the Labour Court directly, without first referring the matter to conciliation. The 90-day period runs from receipt of the dismissal notice following the facilitation process and the expiry of the 60 days from the original section 189(3) notice. The same approach applies under section 189A(8).
The line of argument relied upon by the Union is that following National Union of Metalworkers of SA on behalf of Members & others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC). Oleo’s contentions were based on judgment of National Union of Metal Workers of South Africa obo Members v SAA Technical (Pty) Ltd [2023] JOL 59337 (LC), wherein Prinsloo J, having considered various authorities accepted the interpretation that required a referral and conciliation or the expiry of a further 30 days before the dispute could be referred to the LC. This judgment was upheld in the LAC in NUMSA obo Members v SAA Technical SOC Ltd (2024) 45 ILJ 2524 (LAC), a judgment delivered shortly before the LAC judgment in the present matter.
Association of Mineworkers and Construction Union v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others (CCT 15/18) [2020] ZACC 8; 2020 (7) BCLR 779 (CC); (2020) 41 ILJ 1837 (CC); [2020] 10 BLLR 959 (CC) (20 May 2020)
National Union of Metal Workers of South Africa v Intervale (Pty) Ltd and Others (CCT72/14) [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC) (12 December 2014)