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Article 42/2024

LabourEdge

Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of s191(5)(a) of the LRA, despite an objection by the other party to the dispute, but in non-compliance with rule 17(2) of the CCMA rules?

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  • In terms of rule 17(2) of the CCMA rules, a party, that intends to object to a dispute being dealt with in terms of s191(5A), must deliver a written notice to the CCMA and the other party, at least seven days prior to the scheduled date of the con-arb hearing.
  • In terms of s191(5A) of the LRA, the CCMA, or the relevant bargaining council, must commence the arbitration immediately after certifying that the dispute remains unresolved if:
    • the dismissal relates to probation, or
    • the unfair labour practice relates to probation, or
    • there is no objection for the matter to proceed immediately to arbitration
  • The labour court, in Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (2023) 44 ILJ 1106 (LC); (2023) 34 SALLR 13 (LC), adopted the following approach to the aforesaid issues:
    • s34 of the Constitution guarantees everyone to have any dispute, that can be resolved by application of law, decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum
    • it is wrong to interpret s191(5A)(c) of the LRA to mean that any objection raised outside the prescribed period in rule 17(2) of the CCMA rules ceases to be an objection
    • rule 35(1) of the CCMA rules provides the CCMA and the commissioner with a wide discretion to condone any failure to comply, on good cause shown, and this discretion is to be utilised when there is non-compliance with the seven-day time period as set out in rule 17(2) of the CCMA rules – it does not follow that non-compliance with the seven-day requirement in rule 17(2) renders defective an objection to the point that it can be ignored
  • In response to this judgment, the Director of the CCMA, on 6 April 2023, issued a directive indicating, inter alia, that rule 17(2) remains in force, but any failure with the seven-day time period can be condoned, on good cause shown.
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?