NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA AND OTHERS v. INDUSTRIAL OLEO CHEMICAL PRODUCTS

1. Case Citation and Basic Information

National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026)

Constitutional Court of South Africa

Heard on 30 September 2025; decided on 29 May 2026.

Judgments: Tshiqi J (majority): [1]–[68]; Theron J (minority): [69]–[107].

2. Introduction

This application was heard on 30 September 2025 by the Constitutional Court of South Africa. The applicants were members of the National Union of Metalworkers of South Africa (NUMSA) — Bhekabantu Mjweni, Patrick Ndlovu, Trevor Ntuli, Mbongeleni D Dlamini, Deon Van Der Byl and Norman Thwala — and the respondent was Industrial Oleo Chemical Products, a business of AECI Chemicals and the applicants’ employer.

The applicants had been retrenched for operational reasons under section 189A of the Labour Relations Act 66 of 1995 (the LRA), which regulates large-scale retrenchments by setting employee thresholds, mandatory CCMA facilitation, and strict timelines. After an initial dismissal in 2020, the employees successfully approached the Labour Court on an urgent basis under section 189A(13), were reinstated, and a fresh facilitation process began. When that second facilitation also failed, the employees were dismissed again in November 2020.

This decision is significant because it clarifies the procedural route open to employees in the Labour Court once a section 189A facilitation process has broken down. Many employees are dismissed for unfair reasons and, because labour law is often poorly understood, never dispute the process that led to their dismissal. This judgment is a useful starting point for anyone navigating an unfair dismissal dispute in the retrenchment context.

3. Facts of the Case

The respondent retrenched the applicants for operational reasons under section 189A of the LRA. Section 189A(2) requires that, where the CCMA has been asked to facilitate the consultation process, the employer must issue a written notice inviting the other consulting party to consult and must disclose in writing all relevant information, including but not limited to: the reasons for the proposed dismissals; the alternatives the employer considered before proposing the dismissals, and the reasons for rejecting them; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the timing of the dismissals; the proposed severance pay; any assistance the employer proposes to offer the affected employees; the possibility of their future re-employment; and the number of employees dismissed for operational reasons in the preceding twelve months.

The applicants challenged the process on the basis of section 189A(13), which allows a consulting party to approach the Labour Court where the employer has not followed a fair procedure. On such an application, the Labour Court may: direct the employer to comply with a fair procedure; interdict the employer from dismissing the employee(s) until it has done so; direct the employer to reinstate an employee until it has complied with a fair procedure; or, if reinstatement or an interdict is not appropriate, order the employer to compensate the employee. The applicants argued that they had been denied an opportunity to make representations and that the facilitation meetings had been predetermined.

The respondent raised a preliminary point, submitting that the applicants first had to refer the unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA) before approaching the Labour Court. It contended that, after a failed facilitation, dismissed employees cannot bypass conciliation and go directly to the Labour Court.

The Labour Appeal Court (LAC) found a functional distinction between facilitation and conciliation. Relying on National Union of Metalworkers of South Africa obo Members v SAA Technical SOC Ltd (JA109/23) [2024] ZALAC 41; [2024] 12 BLLR 1259 (LAC); (2024) 45 ILJ 2524 (LAC), it held that section 189A is concerned only with what happens during the consultation process, not with what happens once consultation has ended. Before this Court, the applicants submitted that this Court’s jurisdiction was engaged because the matter raised a constitutional issue. The LAC had cited this Court’s decision in Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others [2020] ZACC 8 (6 May 2020) for the proposition that section 191 requires unfair dismissal disputes to be referred to conciliation, with the Labour Court’s jurisdiction deferred until a dispute has been conciliated.

4. Legal Issues

1. Whether this Court’s jurisdiction is engaged and, if so, whether leave to appeal should be granted.
2. Whether section 189A(7)(b)(ii) of the LRA requires parties to refer a dismissal dispute to conciliation, following a failed facilitation, before that dispute arising from a large-scale retrenchment can be referred to the Labour Court.

5. Arguments Presented

5.1 Applicants’ Arguments

The applicants contended that the issue turned on the interpretation of section 189A(7)(b)(ii) read with section 191(11) of the LRA, and that, on their interpretation, parties to a failed facilitation do not need to first refer the dispute to conciliation before approaching the Labour Court.

The applicants conceded that facilitation and conciliation serve different roles, but argued this was not decisive. They submitted that facilitation, and the engagement it involves, is sufficient in the context of a dismissal that follows facilitation.

5.2 Respondent’s Arguments

The respondent conceded that the matter engaged this Court’s jurisdiction, but argued that leave to appeal should be refused because the appeal enjoyed no prospects of success. It relied on the fact that the LAC had twice rejected the applicants’ argument, and that in National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd [2014] ZACC 35 this Court endorsed the LAC’s principle that conciliation is a precondition to the Labour Court’s jurisdiction. The respondent submitted that section 189A(7) is no exception to that principle.

The respondent argued that facilitation and conciliation are fundamentally different processes: facilitation protects the parties’ interests and reduces litigation costs, whereas conciliation is a swift, thirty-day process that precedes Labour Court adjudication of dismissal disputes.

6. Court’s Reasoning and Analysis

In construing section 189A(7)(b)(ii), the majority applied the principles of statutory interpretation set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and, on jurisdiction in the section 189A context, in Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others [2024] ZACC 8. (The pinpoint references to these authorities should be checked against the full text of the judgment before publication.)

The Court found that section 189A was introduced to achieve substantive and procedural fairness in large-scale retrenchments, and that section 189A(7)(b)(ii) was aimed at resolving disputes at an earlier stage and with urgency. The majority held that, on a proper construction of section 189A(7)(b)(ii), a dismissed employee or trade union may refer an unfair dismissal dispute arising from a failed facilitation directly to the Labour Court, without first referring the dispute to conciliation. Leave to appeal was granted, the appeal was upheld, the LAC’s order was set aside, the Labour Court’s order was reinstated, and the matter was remitted to the Labour Court to decide the merits.

The applicants also submitted that interpreting section 189A(7)(b)(ii) in their favour avoids an unfair distinction between employees who choose to strike under section 189A(7)(b)(i) and those who choose adjudication under section 189A(7)(b)(ii). The Court agreed, noting that section 189A(10)(a) precludes a consulting party that has referred the dispute to the Labour Court from later giving notice of a strike: once the time periods in section 189A(7) and (8) have expired, employees may exercise either of two mutually exclusive options, but not both.

The respondent argued that the right to strike is retaliatory in nature and that requiring conciliation first would neuter that right, because a thirty-day referral to conciliation would run out the notice period under section 37(1) of the Basic Conditions of Employment Act, by which time the retrenchment would already have taken effect — leaving the employees unable to strike at all. The Court accepted that requiring conciliation, with the retrenchment notice period running out over employees’ heads, would mean they were overtaken by the retrenchment before they could act, but it was not persuaded that a strike in these circumstances is properly characterised as retaliatory.

7. Judgment and Ratio Decidendi

The majority judgment found that facilitation takes place before dismissal, during the retrenchment consultation, whereas conciliation takes place after dismissal: facilitation is pre-emptive and consultative, while conciliation is reactive and remedial. It found that, in section 189A(7)(b)(ii), the Legislature specifically referred to the Labour Court and cross-referenced section 191(11), not section 191(5). For these reasons, the majority set aside the LAC’s decision, reinstated the Labour Court’s order, and remitted the matter to the Labour Court to decide the merits of the applicants’ case.

The minority (Theron J) took the view that section 189A(7)(b)(ii) directs that any referral to conciliation must occur pursuant to section 191(11) as a whole, and that the applicants’ interpretation was unsupported by the text because it required the reader to disregard substantial portions of section 191(11) — including the reference to section 191(5)(b) and the requirement that a dispute be certified as unresolved — despite there being no referral to conciliation at all on the applicants’ approach.

The ratio decidendi is that, where facilitation has failed in a section 189A retrenchment, the Labour Court has jurisdiction to hear the resulting unfair dismissal dispute without a prior referral to the CCMA for conciliation. A court should not uphold a preliminary objection based on the absence of conciliation in these circumstances. The remainder of the reasoning on the strike/adjudication distinction is properly regarded as persuasive obiter, rather than part of the binding ratio.

8. Critical Analysis

8.1 By majority, the Court set aside the decision of the Labour Appeal Court, reinstated the order of the Labour Court, and remitted the matter to the Labour Court to decide the merits. The judgment gives employees who might otherwise lack the resources or knowledge to challenge a retrenchment a clearer sense of the steps available to them.

Its significance lies in streamlining the process for employees to challenge unfair dismissals arising from operational requirements, by allowing direct access to the Labour Court once facilitation has failed, saving time and cost.

8.2 Both employees and employers are affected. Employees and unions can now approach the Labour Court directly once facilitation has failed, saving time and resources, and employers can no longer raise the absence of CCMA conciliation as a jurisdictional point in limine in section 189A matters.

8.3 The Court’s reading of section 189A(7)(b)(ii) — permitting direct referral to the Labour Court after failed facilitation — gives meaningful effect to the provision, promotes efficient dispute resolution, and reduces employers’ legal costs. Its core strength is that the judgment is textually sound, purpose-driven, and constitutionally aligned.

Its principal weakness is tension with the LRA’s general scheme, which ordinarily prioritises conciliation before adjudication; this carve-out creates a risk of undermining that scheme, particularly because facilitation is typically a shorter, more process-focused exercise run by a CCMA commissioner rather than a full conciliation. The core controversy is whether the Court correctly balanced the need for speed against the LRA’s broader conciliatory ethos.

One reform worth considering is treating facilitation as functionally equivalent to conciliation for this purpose, or allowing direct referral to the Labour Court only where the facilitator issues a certificate confirming that facilitation has failed.

9. Conclusion

This judgment has reshaped an important part of the labour law landscape, requiring employers to comply carefully with the requirements of section 189A before taking decisions that could adversely affect employees.

On a proper reading of section 189A(7)(b)(ii), in context and having regard to its purpose, the Constitutional Court’s interpretation — not the Labour Appeal Court’s — should be endorsed.

NUMSA v Industrial Oleo Chemical Products is likely to be remembered as the case that made the route to adjudication of section 189A retrenchment disputes faster, by removing conciliation as a jurisdictional precondition once facilitation has failed, and as a starting point for further debate about how far South African labour law is moving away from alternative dispute resolution.

10. Bibliography

• National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026)
• National Union of Metalworkers of South Africa obo Members v SAA Technical SOC Ltd (JA109/23) [2024] ZALAC 41; [2024] 12 BLLR 1259 (LAC); (2024) 45 ILJ 2524 (LAC)
• Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others [2020] ZACC 8 (6 May 2020)
• National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd [2014] ZACC 35
• Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
• Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (CCT 220/22) [2024] ZACC 8 (21 May 2024)
• Labour Relations Act 66 of 1995
• Basic Conditions of Employment Act 75 of 1997
• Cliffe Dekker Hofmeyr, “Conciliation after failed facilitation: The Constitutional Court clarifies the route to the Labour Court in large-scale retrenchments” (1 June 2026)
• Barter McKellar, “Section 189 vs 189A: Why Large-Scale Retrenchments Carry Higher Risk”