Can an employee file the same dispute twice to the CCMA on different grounds?

Often when an employer investigate misconduct in the workplace, it so happens that a single act of misconduct can lead to multiple, different charges against an employee. An example would be whereby an employee my breach cash procedures with the ultimate aim of misappropriating company funds for personal gain. In such a case, the employee may very well be charged for both breach of company cash management procedures as well as for dishonesty/misappropriating of company funds.

But what happens, and could an employee, file multiple referrals to the CCMA in disputes of the same instance (let’s talk unfair dismissal), but for different reasons? Zixolislle Feni vs Pan South African Language Board, was one such a case. On the 27th of June 2016 the employer issued Mr. Feni with a notice, calling on him to make representations as to why his services should not be terminated for reasons relating to ‘incompatibility’. Some of the reasons put forward was an alleged campaign by Mr. Feni to attack the legitimacy of the appointment of Dr. Monareng as CEO of the employer, attempts to undermine his authority as well as a sustained campaign of litigation against the company. 

Mr. Feni failed to make any representations and accordingly, the employer issued him with a dismissal notice on the 29th of June 2016. Mr. Feni then filed an automatic unfair dismissal dispute to the CCMA on the 6th of July 2016 arguing that the reason why he was dismissed was due to him making a protected disclosure. 

The matter proceeded to conciliation and on the 25th of July 2016, the CCMA issued a certificate of non-resolution and that the dispute could now be referred to the Labour Court as an automatic unfair dismissal dispute, which Mr. Feni did. The very next day, the 26th of July 2016 (still within his 30-day time limit), Mr. Feni also filed a standard unfair dismissal dispute to the CCMA relating to the same instance of dismissal of the 29th of June 2016. At conciliation of the second unfair dismissal dispute, the employer raised a point in limine in that the CCMA lacked jurisdiction to conciliate the dispute as Mr. Feni referred two unfair dismissal disputes to the CCMA pertaining to the very same dismissal. The company argued that the CCMA already considered the dispute previously and had issued a certificate of outcome certifying that the dispute remained unresolved and could be referred to the Labour Court as an automatic unfair dismissal and as such the CCMA does not have the jurisdiction to hear the second referral as it already attended to the matter (functus officio). 

The CCMA ruled in favour of the employer, upon which, Mr. Feni approached the Labour Court, contending that the CCMA indeed have the jurisdiction to hear the second referral. The Labour Court dismissed the application and stated; 

“this was not a case where there were two causes of action but rather one where the appellant sought two separate hearings for the same dismissal which, in her view, was impermissible in law.” 

Mr. Feni then appealed the Labour Court’s order to have it overruled. 

The Labour Appeal Court then dealt with the questions whether the CCMA has jurisdiction to conciliate and arbitrate the second dismissal, and if it did not, on what basis can it be found that it did not have such jurisdiction. The Court particularly dealt with whether the doctrines of res judicata (basically a court/forum cannot deal with a dispute already dealt and brought to finality by a competent court/forum) and lis pendens ( the referral of the same dispute to more than one court/forum, which may potentially result in contradicting findings). 

The Labour Appeal Court argued that res judicata, in particular, does not find application in the present case as res judicata find application in context of the main legal argument or ‘reasons’ for the dismissal (this dispute), whereas the dispute before the Court does not relate to the reasons or legal issues of the actual dismissal, but rather whether the CCMA has jurisdiction to hear the dispute or not. 

The Labour Appeal Court, however, did find that lis pendens found application. The Court referred to Nestle (South Africa) Pty Ltd vs Mars Inc 2001 and stated; 

“The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before the tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally.” 

The finding in the Nestle case support the underlying concept of dismissal law in that disputes should be dealt with expeditiously and be brought to finality. 

“Wallis J explicated upon the doctrine in Caesarstone Sdocot-Yam v World of Marble and Granite 2000 CC and others 2013 (6) SA 499 (SCA) at para 2 where he said that the policy underlying the doctrine of lis pendens ‘is that there should be a limit to the extent to which the same issue is ligated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk they may reach different conclusions.” 

The Court stated that lis pendens found application in this dispute as if not, it may be that a dispute concerning a single act of dismissal of an employee, whilst being heard by the Labour Court, it would then be possible for the employee to make an application to amplify his case so as to include a second ground for his allegation of unfair dismissal on different reasons. 

The Labour Appeal Court dismissed the appeal with cost. 

What we learn from this case is that an employee cannot file multiple referrals of a dispute of the same instance to the CCMA or competent courts as this will trigger the doctrine of lis pendens, which should it be entertained, could result in multiple forums rule on the same dispute with contradictory outcomes.

 It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: tobie@effectusharmony.co.za