Article 32/2022

Both in terms of the rules of the CCMA and the rules of the various bargaining councils, a referral form must be signed by the referring party (Form 7.11 and Form 7.13).  The obvious purpose of such rules is to avoid the possibility of an unauthorised referral for conciliation or arbitration.  When such referral form is not signed by a referring party, but, for instance, by such referring party’s attorney, what are the consequences of such non-compliance at the stage when the defective referral form is filed on the CCMA or the relevant bargaining council?  To what extent does such referring party’s mere participation in conciliation proceedings or arbitration proceedings render the requirement of such referring party’s signature redundant at such stage?

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The principles extracted from Adams v National Bargaining Council for the Road Freight and Logistics Industry (2020) 31 SALLR 114 (LAC); (2020) 41 ILJ 2051 (LC) are as follows, in respect of a defective form 7.11 (in the sense not signed by the referring party):

  • at the filing stage at the CCMA or the bargaining council, such bodies may reject such referral seeing that it was not signed by the referring party, on the basis that the requirement of such signature by the referring party has a specific purpose, namely, to avoid an unauthorised referral
  • at conciliation, if the employee participates without objection or, alternatively, the employer objects but the employee is present, the CCMA or bargaining council has jurisdiction to deal with the dispute on the basis that:
  • the requirement of the signature has become redundant
  • ratification of the defective conciliation referral has taken place, seeing that the employee is present and compliance with the rule that requires signature by the referring party to avoid unauthorised referral is no longer required, seeing that the presence of the employee at the proceedings clearly indicates that the referral is indeed authorised

In respect of a defective form 7.13 (in the sense not signed by the referring party to arbitration), appearance by the employee at the arbitration stage (either without objection from the employer or with objection by the employer) establishes the jurisdiction of the CCMA or the bargaining council, seeing that:

  • the presence of the employee at the proceedings is clear proof that the referral is authorised
  • ratification of such defect of arbitration referral has taken place

In SAMWU obo Manentza v Ngwate Local Municipality and Others (2015) 36 ILJ 2581 (LAC), it was clearly held that the breach of a peremptory requirement to refer a dispute within a fixed period to conciliation or arbitration could not be overlooked for the purposes of determining jurisdiction.  The labour appeal court, in the Adams matter, thus indicated that the policy considerations governing timeous referrals cannot be equated with the utility of a personal signature by an aggrieved party in respect of a referral.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?