Large-scale retrenchments are regulated by section 189A of the Labour Relations Act 66 of 1995 (“LRA”), which seeks to ensure both procedural and substantive fairness. It also introduces a facilitated consultation process and grants employees the right to strike over retrenchment.

Section 189A(7) provides that once a facilitator has been appointed and 60 days have elapsed from the issuing of a section 189(3) notice, the employer may give notice of termination of employment. At that stage, employees may either issue a notice of strike in terms of section 64(1)(b) or (d) or refer a dispute concerning the fairness of the dismissal to the Labour Court in terms of section 191(11) of the LRA. Section 191(11) requires that disputes contemplated in section 191(5)(b) be referred within 90 days after certification that the dispute remains unresolved.

In the recent Constitutional Court judgment of National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026), the applicants challenged the Labour Appeal Court’s interpretation of section 189A(7)(b)(ii), read with section 191(11) of the LRA. The Labour Appeal Court had held that, following a failed facilitation process in the context of mass retrenchments, parties are required to refer the dispute to conciliation before approaching the Labour Court for adjudication.

The applicants, having been dismissed following an unsuccessful facilitation process, referred an unfair dismissal dispute directly to the Labour Court in terms of section 189A(7)(b)(ii). The respondent raised a preliminary objection, arguing that the applicants were obliged to first refer the dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or the relevant bargaining council for conciliation before approaching the Labour Court. On this basis, the respondent contended that the Labour Court lacked jurisdiction.

The Labour Court dismissed this preliminary point, holding that referral to conciliation was not a compulsory step after the facilitation process failed. Dissatisfied with this outcome, the respondent appealed to the Labour Appeal Court, which reached a contrary conclusion. The Labour Appeal Court held that referral to conciliation is mandatory following the failure of facilitation and emphasised the distinction between facilitation and conciliation.

The applicants then sought leave to appeal to the Constitutional Court. The key issue before the Court was whether section 189A(7)(b)(ii) requires parties, after a failed facilitation process, to first refer a dismissal dispute for conciliation before approaching the Labour Court. A related question concerned the purpose of the reference to section 191(11) within section 189A(7)(b)(ii).

The majority of the Constitutional Court undertook a comparative analysis of sections 189A(7) and 189A(8). Where no facilitator is appointed, section 189A(8) provides for a 30-day consultation period followed by a further 30-day conciliation period - together comprising a 60-day period - before dismissal notices may be issued. In both scenarios, dismissed employees are afforded two mutually exclusive options: they may either strike or refer the dispute to the Labour Court. Importantly, neither subsection expressly requires conciliation of the dismissal dispute itself before employees may exercise the right to strike.

The Court reasoned that section 189A(7) already satisfies the general requirement in section 64(1)(a) that 30 days must lapse after referral to conciliation before a strike may be undertaken. It would therefore be incoherent to allow employees to embark on strike action immediately, while requiring those who elect adjudication first to undergo a conciliation process. If the legislature had intended conciliation to follow facilitation, it would have expressly provided for such a requirement. Furthermore, if conciliation were required before adjudication, consistency would demand that the same requirement apply to strike action.

Addressing the interpretive difficulty arising from the reference to section 191(11), the majority found that section 189A(7)(b)(ii) is a clear, self-standing jurisdiction-conferring provision. It enables direct access to the Labour Court without imposing additional jurisdictional prerequisites. The Court emphasised that the LRA creates a distinct regime for mass retrenchments. Outside this framework, conciliation remains a jurisdictional prerequisite for disputes referred under section 191(5)(b). However, importing a conciliation requirement into section 189A(7)(b)(ii) would create a redundant procedural step and undermine the purpose of direct referral.

The majority concluded that the reference to section 191(11) serves only to prescribe the applicable time period - namely, the 90 days within which a referral must be made. It does not import a requirement for conciliation. Accordingly, the Court found that dismissed employees or trade unions may refer an unfair dismissal dispute arising from a failed facilitation process directly to the Labour Court.

The Constitutional Court granted leave to appeal, upheld the appeal, set aside the Labour Appeal Court’s decision, and reinstated the order of the Labour Court. The matter was remitted to the Labour Court for determination on the merits.

This judgment is significant in clarifying that, in cases falling under section 189A, where a facilitator has been appointed. The facilitation process has failed, employees or trade unions may refer an unfair dismissal dispute directly to the Labour Court in terms of section 189A(7)(b)(ii), without first referring the dispute to conciliation. It further confirms that the 90-day period prescribed by section 191(11) applies and runs from the date of dismissal following the expiry of the 60-day facilitation period. Consequently, the absence of conciliation can no longer be relied upon as a jurisdictional objection in disputes falling within section 189A(7).


Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).