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Lessons from Truworths Ltd v Peter (Labour Appeal Court, 05 June 2025)
The Labour Appeal Court (LAC) has overturned a Labour Court (LC) decision because the employee skipped the mandatory conciliation step under section 191 of the LRA. Although the judgment is marked Not Reportable – so it is persuasive rather than binding – it is a sharp reminder that sound procedure is still an employer's strongest shield.
A technician who had lodged anonymous theft tip-offs later alleged he was harassed, disciplined and ultimately dismissed for whistle blowing. He first referred an unfair labour practice / constructive dismissal dispute to the CCMA; that referral was late, and the CCMA declined jurisdiction. Undeterred, he sued in the Labour Court for an automatically unfair dismissal linked to a protected disclosure.
Truworths filed a special plea, arguing that the LC had no jurisdiction because the dismissal dispute had never been conciliated. The LC rejected that plea, but the Labour Appeal Court upheld it on appeal, without prior conciliation, the claim could not proceed.
Five Practical reminders for Employers
1. Check jurisdiction first.
When a statement of claim arrives, ask: Was this dispute referred for conciliation on time? If not, raise a special plea immediately; it can end the case before the merits are ventilated.
2. Conciliation is compulsory – even for whistle blower cases.
The LAC stressed that strong retaliation allegations do not excuse bypassing the CCMA. Section 191 is a "non-negotiable gatekeeper."
3. Fortify whistle blower protocols.
Although Truworths succeeded on jurisdiction, the facts reveal years of contested investigations. A clear, well-documented whistle-blower policy minimises such risks from the outset.
4. Meet every litigation deadline.
Truworths filed its appeal record seven court days late; condonation was granted only because the delay was fully explained. Do not rely on judicial leniency, but build strict internal calendars and assign responsibility for each filing.
5. Separate discipline from disclosures – and document it.
If disciplinary action follows a protected disclosure, record objective reasons and the steps taken to avoid victimisation. A solid paper trail is indispensable in court.
Next Steps for HR and in-house counsel
- Audit recent dismissals: Confirm that every dismissal or unfair labour practice dispute was conciliated within 30 days.
- Refresh whistle-blower procedures: Make reporting channels, anonymity protections and follow-up steps explicit in writing.
- Train managers: Help them distinguish legitimate discipline from retaliation.
- Tighten litigation housekeeping: Review diary systems to prevent missed filing dates.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
