What are the consequences of the failure of a party or its representative appearing at arbitration in view of the content of s138(5) of the LRA, which reads as follows:
- if a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party –
- had referred the dispute to the Commission, the commissioner may dismiss the matter…’?
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- In Solomons v Phokela NO and Others (unreported judgment JR99/2021, delivered on 4 August 2021), the labour court adopted the approach that the dismissal of the matter for non-attendance by the referring party or its representative is akin to the matter being struck off the roll.
- In the aforesaid judgment, the approach was also adopted that in the aforesaid circumstances there is no need to apply for rescission of the dismissal ruling, but the absent party could apply to have the matter re-enrolled upon providing a satisfactory explanation for his/her failure to attend the arbitration proceedings.
- Consequently, the CCMA incorporated rule 31C into its new rules on 24 April 2023, specifically catering for the request to have the matter re-enrolled.
- Waglay JP, in Matoma Tumi Mohube v CCMA and Others (2023) 34 SALLR 72 (LAC), however, adopted a different viewpoint and indicated that dismissal of the matter is a possible remedy and rejected the matter being struck from the roll – in dealing with the matter, Waglay JP also, furthermore, indicated the following:
- s138(5)(a) of the LRA gives the commissioner the power to dismiss a dispute being referred to the CCMA for arbitration on the basis of non-attendance by the applicant – it is not a power that can be exercised mechanically or unconsciously
- such power requires the commissioner to exercise a discretion whether to dismiss the dispute or not
- the commissioner may not simply adopt the stance that, ex facie the file, service was properly effected to the party referring the dispute and, therefore, failure to attend should automatically result in a dismissal
- where it is the first occasion that the applicant fails to attend an arbitration hearing, a lesser sanction than dismissal of the matter may be appropriate – the matter could be postponed sine die and, if the referring party has no desire to proceed with the dispute, the matter would end there, or the commissioner could postpone the matter to a specific date with instructions to the CCMA’s case management officer to do more than simply forwards a set-down notice to the applicant
- Subsequent to the handing down of this judgment by the labour appeal court, the CCMA issued directive 7 of 2023, effective from 26 May 2023.
- The directive entails, inter alia, the following:
- the CCMA directive on the determination of dismissals under s138(5)(a) of the LRA, of 5 October 2021, is repealed with immediate effect;
- commissioners have the power to dismiss a matter in terms of s138(5)(a) of the LRA, but are directed to utilise this power as a last resort;
- in cases where a dismissal ruling has been made, parties have the right to apply to have such ruling rescinded in terms of s144 of the LRA, read with CCMA rule 32; and
- a ruling issued in terms of rule 30 of the CCMA rules is a ruling contemplated in terms of s144 of the LRA.
- The CCMA issued guidelines in terms of s138(5)(a) of the LRA, on 7 June 2023, which arise from Directive 7 of 26 May 2023 (effective from 7 June 2023).
- These guidelines incorporate the practice and procedure guidance provided by the LAC in Mohube (LAC).
- Before exercising a discretion to dismiss a matter in terms of s138(5)(a) of the LRA, read with rule 30 of the CCMA rules, a commissioner must apply his or her mind to relevant factors, including but not limited to:
- the existence of proof that the set down notice was served on the applicant and it was served within the timeframes contained in CCMA rules 17(1) and 21;
- whether the notice of set down included accurate details of the time, venue and date of the arbitration hearing;
- the manner in which the set down notice was served on the applicant, which, for postal services, should take into account accessibility to the applicant’s physical address;
- whether any other form of contact was made with the applicant and/or his/her representative to remind that party of the arbitration, including, but not limited, to a case management system generated short message service (sms) or email;
- whether the applicant was represented and whether the representative was also absent from the arbitration hearing;
- where the details of the representative are on the record, whether the representative was notified of the arbitration hearing;
- whether the applicant or his/her representative had applied for postponement in compliance with CCMA rule 23; and
- whether it is the first time that the applicant has failed to attend the CCMA hearing (in this matter).
- Furthermore, having completed the above initial inquiry steps, the commissioner may contact the applicant to inquire about his/her absence from the arbitration hearing.
- The details of the initial inquiry (and obviously also the contact thereafter by the commissioner) must be included in the commissioner’s ruling.
- The guidelines also contain transitional arrangements on rule 30(1)(a) and rule 31C applications to the following effect:
- commissioners should have regard to the above guidelines when exercising their discretion in terms of CCMA rule 31C;
- all pending rule 31C applications must be determined in accordance with rule 31C; and
- if a matter was removed from the roll and the applicant wishes to pursue his/her case, that party may apply to have the matter re-enrolled in terms of rule 31C(4) and the request must be determined in terms of rule 31C.
