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Darcy du Toit’s Weekly Comment in IR Network published by LexisNexis [subscription required] “The letter versus the spirit of the law”
https://www.mylexisnexis.co.za/Index.aspx
Excerpt
It may well be that, on a literal reading of rule 16 and earlier judgments relied on by the Labour Appeal Court, its judgment – and the minority judgment of Zondo J in the Constitutional Court – was quite correct. But, according to the majority of the Constitutional Court, a literal reading was both wrong and inappropriate.
In a carefully-reasoned judgment, Theron J demonstrated that the purposes of the LRA, and especially the object of effective dispute resolution, are decisive in understanding the meaning of Rule 16. Declaring conciliation proceedings to be privileged is not simply a formal directive but one with an important purpose. In essence, it “prohibits disclosure of offers, counter-offers and discussions” in order “to allow parties to be able to speak openly and honestly without concern of something they have said being used against them at a later stage” (para 64).
However, “to impose a blanket ban on the entirety of the content of conciliation proceedings, does not further promote this purpose, or serve any legitimate purpose” (para 70). Therefore “[e]vidence as to the nature of the dispute is … not privileged. This evidence does not relate to the substance of the proceedings and is merely descriptive” (para 67).
In short:
“The Labour Appeal Court adopted an overly formalistic approach as it held that to answer the question whether the real dispute had been conciliated necessitates a very narrow factual enquiry which entails only looking at two aspects, namely, ‘the characterisation on the referral form and the contents of the certificate of outcome’. The Labour Appeal Court failed to take into account the purpose and context of the Labour Relations Act and the dispute resolution mechanisms for which it provides” (para 44).
This amounts to treating the “dispute” as the words used on paper to describe it rather than the facts of the matter as these emerged at conciliation. The effect of adopting such an approach could only be to compel the employees to start all over again, referring the same set of facts but using a different description.
It may also be noted that, in the cases relied on by the Labour Appeal Court, it was not the characterisation of the dispute in light of the conciliation proceedings that was at issue.
The message is clear: despite the wording of Rule 16, all that is privileged in conciliation hearings is the cut and thrust of negotiations aimed at resolving the dispute, but not the discussion as to its description.