Case Comments: The Interpretation and Application of Section 191(12) of the Labour Relations Act: Bracks NO v Rand Water

• Jurisdiction: South Africa
• Citation: (2011) 23 SA Merc LJ 504
• Pages: 504-512
• Published date: 25 May 2019
• Author: Moseki Maleka
• Date: 25 May 2019

Case Comments

The Interpretation and Application of Section

191(12) of the Labour Relations Act:

Bracks NO v Rand Water

MOSEKI MALEKA

University of South Africa

RAMOKGADI NKHUMISE

North-West University, Mafikeng

1 Introduction

In Bracks NO and Another v Rand Water and Another (2010) 31 ILJ 897

(LAC) the Labour Appeal Court (‘LAC’) had an opportunity to provide

guidance and clarity for the proper interpretation of section 191(12) of the

Labour Relations Act 66 of 1995 (‘LRA’). The question to be answered was

whether the Commission for Conciliation Mediation and Arbitration

(‘CCMA’) has jurisdiction to hear a dispute concerning retrenchment of a

single employee for want of compliance with procedural requirements of

section 189 of the LRA.

On dismissal, employees must follow the procedures and remedies set out

in the LRA to challenge their dismissals. Section 185 of the LRA provides

that every employee has the right not to be unfairly dismissed and/or

subjected to unfair labour practices. Where an employee claims that he or she

has been unfairly dismissed on the ground of misconduct or incapacity, the

dismissal dispute is referred to the CCMA for conciliation and if the matter

remains unresolved, it must be referred for compulsory arbitration either to

the CCMA, or a Bargaining Council in terms of section 195(5)(a) of the LRA.

However, in the case of a dismissal based on the employer’s operational

reasons (retrenchments) an employee who alleges that he or she was unfairly

dismissed must refer the matter for conciliation, and if the matter remains

unresolved it must be referred for adjudication to the Labour Court in terms of

section 191(5)(b)(ii) of the LRA or for an arbitration to the CCMA or

Bargaining Council.

Section 191(12) of the LRA in contrast to section 191(5)(b)(ii), provides

guidance to an employee who is dismissed based on the employer’s

operational reasons following a consultation procedure in terms of section 189

of the LRA to elect to refer the dispute either to the Labour Court for

504

(2011) 23 SA Merc LJ 504

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