Background: SAA's restructuring and the Unions' challenge
The recent Labour Appeal Court (“LAC”) decision in the dispute between South African Airways (“SAA”) and two major unions - the South African Cabin Crew Association (“SACCA”) and the National Union of Metalworkers of South Africa (“NUMSA”) - provides valuable clarity on two key aspects of labour dispute resolution. The case arose from SAA's large-scale restructuring, which followed the airline's entry into business rescue in 2019. As SAA sought to downsize and reorganise, it issued a section 189(3) notice under the Labour Relations Act (“LRA”), initiating consultations on possible retrenchments and changes to employment terms. While some unions reached agreement with SAA, SACCA and NUMSA did not, and subsequently referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”).
Key Legal Issues: CCMA's authority and the Limits of Appeal
Two main legal questions were at the heart of this case:
- The CCMA's power to dismiss for want of prosecution and Labour Court intervention
A central issue was whether the CCMA, as a statutory body rather than a court, has the authority to dismiss a referral where a party has failed to prosecute their case diligently. SAA argued that the unions' referral had been delayed excessively, causing prejudice and undermining the purpose of expeditious dispute resolution. The unions, in contrast, contended that the CCMA could not dismiss a matter before the merits had been heard, unless specifically empowered by statute.
The LAC's judgment leaves no doubt: the CCMA does have the authority to dismiss a referral for want of prosecution. This power is derived from the LRA, which requires commissioners to resolve disputes “fairly and quickly.” The Court explained that, although the CCMA is not a court of law, it is empowered to ensure that proceedings are conducted efficiently and that parties do not abuse the process through undue delay.
The judgment also addresses when the Labour Court may intervene in ongoing CCMA proceedings. As a general rule, the Labour Court will not review preliminary or interlocutory decisions until the arbitration is complete, in order to avoid piecemeal litigation and to promote the swift resolution of disputes. However, the Court recognised an important exception: where a material error of law has occurred, and it is just and equitable to intervene, the Labour Court may step in even before the matter is finalised. In this case, the CCMA Commissioner's refusal to dismiss the delayed referral was found to be a material error of law, justifying the Labour Court's intervention.
- The scope of appeals: Only granted grounds may be challenged
The second key aspect clarified by the LAC concerns the scope of appeals. The unions sought to challenge several aspects of the Labour Court's decision, including the merits of the dismissal and the costs order. However, the LAC made it clear that parties may only challenge those grounds for which leave to appeal has been expressly granted. If the Labour Court has refused leave to appeal on certain issues, those issues are not open for reconsideration by the LAC unless the LAC grants leave on petition.
This principle ensures that appeals are focused and efficient, preventing parties from re-litigating issues that have already been decided or for which the court has determined there is no reasonable prospect of success. In this case, the LAC limited its consideration to the two legal questions for which leave to appeal had been granted and declined to entertain arguments on other grounds.
Court's findings and reasoning
The LAC confirmed that the CCMA is empowered to dismiss referrals for want of prosecution, and that the Labour Court was correct to intervene in this instance due to a material error of law. As a result, the unions' appeal was dismissed, and the dismissal of their referral to the CCMA stood.
Practical implications: What this means for employers and unions
This judgment carries important practical lessons for all parties involved in labour disputes:
- Diligence in prosecution: Parties must act promptly and diligently when referring disputes to the CCMA. Delays - especially those that are unexplained or prolonged - can result in the dismissal of a referral before the merits are even considered.
- CCMA's authority affirmed: The CCMA is not powerless in the face of delay or procedural abuse. Commissioners are expected to manage cases actively and may dismiss referrals where parties fail to prosecute their claims with the necessary diligence.
- Labour court intervention is exceptional: While the Labour Court generally avoids intervening in incomplete CCMA proceedings, it will do so where a material error of law has occurred and where intervention is just and equitable.
- Appeals are not open-ended: Parties should be aware that they may only challenge those aspects of a judgment for which leave to appeal has been granted. Attempting to revisit issues outside the scope of the granted appeal is not permitted.
**ENS represented SAA in this matter
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