The Constitutional Court on Tuesday ruled in favour of three coloured employees who left their jobs as a result of alleged racial discrimination which manifested itself in physical‚ verbal and mental abuse.
The three men had approached the Constitutional Court last year after the Labour Appeal Court held that the Labour Court would not have jurisdiction if a dismissal dispute by the employees had not been referred to a conciliation process.
The case goes back to September 2011 when Theo September‚ Dean September and Ronald Paulsen‚ left their employ with CMI Business Enterprise CC.
The three‚ who were the only black employees of the company‚ performed technical and mechanical duties on mining related projects.
In October 2011‚ they referred an “unfair discrimination” dispute to the Commission for Conciliation‚ Mediation and Arbitration for conciliation. The dispute remained unresolved.
The three men then instituted proceedings in the Labour Court in 2012 seeking an order that their resignations amounted to “automatically unfair dismissals” based on racial discrimination.
The Labour Court found in their favour and said they had been constructively dismissed based on their race.
In their statements to the Labour Court‚ the three said they were addressed as “k****rs” and other derogatory terms.
They were also provided with inferior accommodation on mining sites compared to that of their white counterparts. On an assignment in Komatipoort‚ no accommodation was arranged for them and they were forced to sleep in a toilet.
The Labour Court also ordered the company to pay the employees 24 months’ remuneration‚ the maximum permitted by the Labour Relations Act.
The employer then appealed to the Labour Appeal Court.
The Labour Appeal Court held that the Labour Court did not have jurisdiction to adjudicate a dismissal dispute if that dispute had not been referred to conciliation.
Unhappy with the judgment‚ the men approached the Constitutional Court for relief.
In a majority judgment by Justice Leona Theron‚ the court said the Labour Appeal Court was incorrect.
“By relying only on the referral form and the certificate of outcome‚ the Labour Appeal Court essentially held that no evidence from the conciliation proceedings may be led as evidence in subsequent proceedings‚” Theron said.
In a lone dissenting judgment‚ Deputy Chief Justice Raymond Zondo said the Labour Appeal Court’s decision was correct and in accordance with established precedent.
He said the Labour Court had no jurisdiction to adjudicate a constructive dismissal dispute even if that dispute was referred to conciliation.
“That is because 157(5) of the Labour Relations Act provides that the Labour Court has no jurisdiction to adjudicate a dispute which in terms of the LRA is required to be arbitrated.”
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