LAC overturns interdict: CCMA to decide whether section 188A(11) jurisdictional requirements exist

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The LAC found that the lower court had intervened prematurely in proceedings that were still unfolding and, in doing so, intruded into the CCMA’s statutory role of deciding whether the prerequisites for a section 188A(11) referral had been met.

The appeal, argued on 11 March 2026 and decided on 16 March 2026, resulted in the urgent interdict being dismissed.

Understanding the purpose of pre-dismissal arbitration

Section 188A of the Labour Relations Act (LRA) allows allegations of misconduct or incapacity to be decided by an independent arbitrator instead of through an employer-run hearing. The enhanced mechanism under section 188A(11) is available only where an employee, acting in good faith, claims that participating in an enquiry would amount to an occupational detriment arising from a protected disclosure under the Protected Disclosures Act (PDA).

In such circumstances, either party may insist that the matter proceed as a pre-dismissal arbitration before the CCMA or another accredited body, effectively displacing the employer’s internal process.

Crucially, though, simply alleging a protected disclosure is not enough. The CCMA may only accept a referral once certain jurisdictional facts are proven. This initial jurisdictional check is the CCMA’s responsibility, not that of the arbitrator appointed to hear the actual misconduct/incapacity inquiry.

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Background to the Modika dispute

The conflict began when the IDC initiated disciplinary action against Thebogo Modika following accusations that he had made defamatory and malicious remarks about colleagues. He was placed on precautionary suspension in July 2025.

Shortly thereafter, he complained to the Public Protector and referred an unfair labour practice dispute to the CCMA concerning his suspension. Formal charges were issued in September 2025, but before the disciplinary process could be finalised, Modika asserted that he had made a protected disclosure.

He maintained that continuing with the disciplinary hearing would constitute an occupational detriment contrary to the PDA. He asked the IDC to halt the internal process or, alternatively, to convert it into a section 188A pre-dismissal arbitration. The IDC declined.

Modika then referred the matter to the CCMA for the appointment of an arbitrator under section 188A(11), which the IDC objected to. When the internal hearing was later scheduled to continue, he approached the Labour Court on an urgent basis and secured an interdict halting the process pending the decision of the arbitrator appointed by the CCMA whether the disciplinary enquiry should be conducted in accordance with section 188A(11).

The IDC challenged that ruling before the LAC.

Jurisdictional requirements under section 188A(11)

In setting aside the Labour Court’s decision, the LAC clarified that a referral under section 188A(11) is only competent where the following conditions are satisfied:

1. The employee must have made a disclosure falling within the ambit of the PDA;
2. The disclosure must have been made honestly and in good faith;
3. The employee must have suffered an occupational detriment; and
4. There must be a causal link between the disclosure and the alleged detriment.

If any one of these elements is missing, the statutory mechanism cannot be invoked.

The LAC emphasised the distinct roles within the statutory scheme. The CCMA, as an administrative body, must determine whether these jurisdictional requirements exist.

Only once the CCMA accepts the referral does an arbitrator assume responsibility for conducting the inquiry into the allegations of misconduct or incapacity. The Labour Court erred by undertaking this jurisdictional assessment itself and by stopping the disciplinary process based on that premature finding.

Protected disclosure vs ordinary grievance

The court also cautioned against conflating workplace dissatisfaction with a protected disclosure. While the Labour Court had accepted that Modika’s complaint about a superior qualified as such, the LAC disagreed.

A grievance about interpersonal or workplace issues does not, without more, meet the statutory definition of a protected disclosure. On the available facts, the LAC held that no qualifying disclosure had been shown, meaning the jurisdictional foundation for a section 188A(11) referral was absent.

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Judicial intervention in disciplinary proceedings in medias res

The judgment also provides guidance on the circumstances in which the Labour Court may intervene in ongoing disciplinary proceedings. The LAC reaffirmed the well-established principle that courts should be slow to interfere in disciplinary matters before they have run their course, and that such intervention is permissible only in exceptional circumstances.

In particular, a party seeking an interdict must demonstrate the absence of adequate alternative remedies and the likelihood of irreparable harm.

In the present matter, the court held that even if the disciplinary process were to result in dismissal, Modika would have had access to the remedies provided for under the LRA, including a claim for automatically unfair dismissal in terms of section 187(1)(h). The availability of such remedies militated strongly against the Labour Court’s intervention at that stage.

The LAC was accordingly critical of the Labour Court’s approach, identifying two principal errors:

First, the Labour Court prematurely assumed that the jurisdictional requirements for section 188A(11) had been satisfied, a determination which properly falls within the domain of the CCMA.

Secondly, it granted a final interdict in circumstances where the requirements for such relief, particularly the existence of irreparable harm, had not been established. On this basis, the interdict was set aside.

Concluding remarks

This judgment represents an important development in the pre-dismissal arbitration jurisprudence. It emphasised that the CCMA’s power to appoint an arbitrator under section 188A(11) is contingent upon the prior establishment of jurisdictional facts and that such power is not automatically triggered by an employee’s mere assertion.

It further reinforces the principle that the Labour Court will not lightly intervene in incomplete disciplinary proceedings, particularly where the statutory framework provides adequate remedies.

In its totality, the judgment emphasises the importance of adhering to the statutory framework governing pre-dismissal arbitration.

It serves as a reminder that, while the provision affords important protection in cases involving alleged whistleblowing, it must be invoked within the confines of the law and not as a mechanism to circumvent internal disciplinary processes.