[Section 191 heading substituted by section 46(a) of Act No. 12 of 2002]
| (a) |
If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to— |
| (i) |
a council, if the parties to the dispute fall within the registered scope of that council; or |
| (ii) |
the Commission, if no council has jurisdiction. |
| (b) |
A referral in terms of paragraph (a) must be made within— |
| (i) |
30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal; |
| (ii) |
90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence. |
[Section 191(1) substituted by section 46(b) of Act No. 12 of 2002]
| (2) |
If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit in subsection (1) has expired. |
[Section 191(2) substituted by section 46(c) of Act No. 12 of 2002]
| (2A) |
Subject to subsections (1) and (2), an employee whose contract of employment is terminated by notice, may refer the dispute to the council or the Commission once the employee has received that notice. |
[Section 191(2A) inserted by section 46(d) of Act No. 12 of 2002]
| (3) |
The employee must satisfy the council or the Commission that a copy of the referral has been served on the employer. |
| (4) |
The council or the Commission must attempt to resolve the dispute through conciliation. |
| (5) |
If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved— |
[Words preceding section 191(5)(a) substituted by section 35(a) of Act No. 6 of 2014]
| (a) |
the council or the Commission must arbitrate the dispute at the request of the employee if— |
| (i) |
the employee has alleged that the reason for dismissal is related to the employee"s conduct or capacity, unless paragraph (b)(iii) applies; |
| (ii) |
the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187; or |
[Section 191(5)(a)(ii) substituted by section 46(e) of Act No. 12 of 2002]
| (iii) |
the employee does not know the reason for dismissal; or |
| (iv) |
the dispute concerns an unfair labour practice. |
[Section 191(a)(iv) inserted by section 46(f) of Act No. 12 of 2002]
| (b) |
the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is— |
| (i) |
automatically unfair; |
| (iii) |
the employee "s participation in a strike that does not comply with the provisions of Chapter IV; or |
| (iv) |
because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement. |
| (5A) |
Despite any other provision in the Act, the council or Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concerns— |
| (a) |
the dismissal of an employee for any reason relating to probation; |
| (b) |
any unfair labour practice relating to probation; |
| (c) |
any other dispute contemplated in subsection (5)(a) in respect of which no party has objected to the matter being dealt with in terms of this subsection. |
[Section 191(5A) inserted by section 46(g) of Act No. 12 of 2002]
| (6) |
Despite subsection (5)(a) or (5A), the director must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering— |
| (a) |
the reason for dismissal; |
| (b) |
whether there are questions of law raised by the dispute; |
| (c) |
the complexity of the dispute; |
| (d) |
whether there are conflicting arbitration awards that need to be resolved; |
[Section 191(6) substituted by section 46(h) of Act No. 12 of 2002]
| (7) |
When considering whether the dispute should be referred to the Labour Court, the director must give the parties to the dispute and the commissioner who attempted to conciliate the dispute, an opportunity to make representations. |
| (8) |
The director must notify the parties of the decision and refer the dispute— |
| (a) |
to the Commission for arbitration; or |
| (b) |
to the Labour Court for adjudication. |
| (9) |
The director"s decision is final and binding. |
| (10) |
No person may apply to any court of law to review the director"s decision until the dispute has been arbitrated or adjudicated, as the case may be. |
| (a) |
The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved. |
| (b) |
However, the Labour Court may condone non—observance of that timeframe on a good cause shown. |
[Section 191(11) inserted by section 25 of Act No. 127 of 1998]
| (12) |
An employee who is dismissed by reason of the employer"s operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if— |
| (a) |
the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; |
| (b) |
the employer"s operational requirements lead to the dismissal of that employee only; or |
| (c) |
the employer employs less than ten employees, irrespective of the number of employees who are dismissed. |
[Section 191(12) substituted by section 35(b) of Act No. 6 of 2014]
| (a) |
An employee may refer a dispute concerning an alleged unfair labour practice to the Labour Court for adjudication if the employee has alleged that the employee has been subjected to an occupational detriment by the employer in contravention of section 3 of the Protected Disclosures Act, 2000, for having made a protected disclosure defined in that Act. |
| (b) |
A referral in terms of paragraph (a) is deemed to be made in terms of subsection (5)(b). |
[Section 191(13) inserted by section 46(i) of Act No. 12 of 2002]
| 52 |
See flow diagrams Nos. 10 , 11 , 12 and 13 in Schedule 4. |
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