Does the Labour Court have jurisdiction to hear matters that have not been set down for conciliation or arbitration at the CCMA?

The recent Labour Court matter of Independent Municipal & Allied Trade Union on Behalf of Espach v Polokwane Local Municipality (2024) 45 ILJ 308 (LC) revolves around an application that was made under Section 158(1)(c) of the Labour Relations Act (LRA) 66 of 1995.

The case involved an Applicant who was employed by the Municipality. During their employment, they lodged a grievance related to an upgrade/promotion through the Municipality’s relevant grievance procedures. At the final stage of the grievance procedure, which took place on 4 April 2017, the Municipality issued a ruling that the employee’s grievance must be upheld and that the employee ought to be upgraded/promoted.

The Applicant was subsequently not promoted and stated that the acting municipal manager did not abide by their ruling. The Applicant subsequently referred a matter to the Labour Court, in terms of Section 158(1)(c) of the LRA, for an order that the alleged “settlement agreement” reached on 4 April 2017 be made an order of the court.

The Court held that Section 158(1)(c) must be read with Section 158(1A) and that only a settlement agreement that complies with the criteria set out in Section 158(1A) can be made an order of the court. The Labour Court had focused on the word “right” that appeared in Section 158(1A), where it was held that the settlement agreement was a written agreement to settle the dispute and that a party had the “right” to arbitration or adjudication.

However, the section must be interpreted as a “right” to refer a matter to arbitration or adjudication after the dispute was referred to conciliation. Nonetheless, the Court looked at the case of Fleet Africa (Pty) Ltd v Nijs  2017 38 ILJ 1059 (LAC), which stated that Section 158(1A) only requires the existence of a dispute for a party to have the right to refer to arbitration or adjudication. Therefore, the Court held that the requirements of Section 158(1A) had been met, even though the matter was not referred to conciliation.

The Court then delved into the concept of agreement, highlighting the necessity of offer and acceptance. It found that there was no clear acceptance of an offer at all three stages of the grievance procedure. Even the default ruling issued by the acting municipal manager, if seen as an acceptance, couldn’t validate the agreement as a third party cannot accept an offer. The judge stated: “In summary, it is my view that no valid agreement came into being; resultantly, I exercise my discretion by refusing to make the alleged settlement agreement an order of this Court.”

Therefore, the Court held that the grievance meeting held on 4 April 2017 did not constitute a valid agreement, and as a result, the Court could not exercise its discretionary powers in terms of Section 158(1)(c). The Court ultimately dismissed the Applicant’s Application for the ruling, which was argued to be a settlement agreement, to be made an order of court.

Written by Sharice Naicker, Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)