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At first sight, SATAWU v MSC Depots (Pty) Ltd 2013 34 ILJ 706 (LC) (MSC Depots) and the more recent case of Mchuba v Passenger Rail Agency of SA [2016] ZALCJHB 73 (Mchuba) appear to add nothing to the evolving labour dispute resolution jurisprudence. However, a closer reading of MSC Depots and Mchuba reveal that the two cases bring to light novel questions concerning section 188A of the Labour Relations Act (66 of 1995; hereafter the LRA) – pre-dismissal arbitration. Simply put, can an employer unilaterally withdraw from pre-dismissal arbitration and convene an internal disciplinary hearing after which errant employees are dismissed? Does the fact that the relevant dispute settlement agency lack jurisdiction to conduct a section 188A process – due to lack of accreditation – provide the employer with discretion to conduct an internal disciplinary hearing? Also surfacing is the question whether the Labour Court can grant an urgent application for a declaratory relief setting aside dismissal effected after an internal disciplinary hearing – in circumstances where the parties had agreed to submit misconduct allegations to arbitration in terms of section 188A? The pertinent aspects of the two judgments merit scrutiny.

Is an agreement to refer a matter to an inquiry by an arbitrator in terms of section 188A of the LRA a straightjacket?