The judgment of the Constitutional Court in September and Others v CMI Business Enterprise CC  ZACC 4 has received attention for clarifying the nature of the confidentiality of conciliation proceedings. In practice, a different aspect of this case may have more far-reaching implications. The court ruled that an applicant may under certain circumstances validly apply to have a different category of dispute adjudicated than what was initially referred to the CCMA.
The unrepresented applicants resigned after facing racial abuse at work and referred an unfair discrimination dispute to the CCMA. A certificate of outcome was issued at conciliation for unfair discrimination. Despite the categorisation of the dispute as unfair discrimination, the applicants attempted to rely on the certificate of outcome to institute a claim for automatically unfair dismissal based on racial discrimination to the Labour Court.
The Labour Court accepted the claim and awarded the applicants maximum compensation worth 24 months’ remuneration. The Labour Appeal Court overturned this judgment on the basis that the category of dispute that was initially referred to the CCMA (unfair discrimination) was not the same as the dispute that was heard by the Labour Court (unfair dismissal). It was held that the Labour Court accordingly lacked jurisdiction to hear the dispute. This was the generally accepted approach prior to the current judgment.
The Constitutional Court criticised the approach of the Labour Appeal Court as too legalistic and not promoting the effective resolution of labour disputes. It held that applicants in employment disputes are frequently unsophisticated and not legally trained and should not be bound by their initial categorisation of a dispute. A commissioner may therefore validly change the category of dispute after conciliation. Applicants may even refer a different category of dispute than what was recorded on the certificate of outcome to arbitration or adjudication, as long as they can prove that the substance of this dispute was dealt with at conciliation.
The confidentiality of the conciliation proceedings also arose. In terms of the rules of the CCMA conciliation proceedings are confidential and may not be relied on after the fact. The Constitutional Court held that this is not a blanket ban on the use of the entirety of the conciliation proceedings. This rule is simply an expression of the common law privilege attached to without prejudice settlement negotiations. Only the settlement discussions are confidential. The categorisation of the dispute, the conduct of the parties (and the Commissioner) and any other statements that fall outside the actual settlement discussions are not confidential. Parties may rely on this evidence without the consent of the other party and without a court order.
This judgment has far-reaching implications for the way in which parties (including Commissioners) must conduct themselves in conciliation proceedings. To avoid disputes about the category of the dispute at a later stage, it is advisable to keep careful minutes of what transpires in the conciliation proceedings. Where applicants change the nature of dispute at a later stage, the need for the condonation of the initial referral would also have to be considered because different categories of disputes have different time periods for referral.