South African courts don’t always follow the rules
Although Commission for Conciliation, Mediation and Arbitration (CCMA) must follow fundamental structures of labour legislation when dealing with labour-related disputes, not all cases have to follow what is explicitly stated in the legislation.
Bradley Workman-Davies from Werksmans Attorneys said that the Labour Relations Act (LRA) of 1995 established the rules that the CCMA must follow.
The rules are intended to make sure that the CCMA follows resolution processes consistently.
Although the rules are often followed quite strictly, South African courts approach issues regarding employment rights from the perspective of equity and fairness, meaning that the rules can be altered to ensure that all parties are given a fair opportunity.
Disputes at the CCMA are automatically sent for a conciliation and arbitration (con/arb) process. This means that an informal conciliation meeting between relevant parties will take place, and if this fails, a formal arbitration will then be held where the CCMA can make a binding award.
However, a party involved may object to the con/arb process, where the arbitration is split from the conciliation and not be heard immediately after – which is usually the case.
If the conciliation fails, the employee will be entitled to request that the arbitration be set at a later date, given that the CCMA issues a certificate of no outcome.
The CCMA rules state that an objection to the con/arb process must be lodged seven days before the scheduled date of the proceedings.
In the Labour Court case – Valinor Trading 133 CC t/a Kings Castle v The CCMA and Others, the Court had to determine whether a commissioner can ignore an objection based upon time constraints.
In the case, the claimant, an independent contractor working with Valinor, who saw the relationship as one between employer and employee, went to the CCMA alleging that they had been unfairly dismissed upon the contract’s relationship ceasing.
The dispute was enrolled, but Valinor objected to the immediate commencement of the arbitration, which was received only three days before the date.
The CCMA proceeded with the arbitration in the absence of Valinor on the basis that the objection had not been sent within the seven-day period specified by the rules.
The CCMA issued a default award, which Valinor wanted to be rescinded. A rescission application was dismissed by the CCMA, with a second recession application also dismissed by the commissioner.
Valinor approached the Labour court to set aside both rulings by the CCMA.
The Labour Court considered the CCMA rules regarding the seven-day notice for a party intending to object to a dispute.
The Court said that the statutory provisions must be interpreted according to the Constitution and other conditions found in the LRA.
It held that the CCMA rules are discretionarily and are there to regulate and not prescribe.
It added that a commissioner is not empowered to proceed with arbitration if a party has objected, irrespective of timing.
If the commissioner ignores the objection and proceeds, the following decision is seen as null.
The Court said that the right to submit an objection cannot be taken away by the rules or simply ignored by a commissioner.
Workman-Davies said that employers, employees or other parties should not be discouraged if they fail to submit a notice to object to arbitration proceedings within the specified timeframes, as a late objection still counts as an objection.
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