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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.
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