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Article 73/2021

Labour Edge

In Thaver v Pick ‘n Pay Retailers (Pty) Ltd (2020) 41 ILJ 2655 (CCMA), the employee’s attorney signed the referral form to arbitration (LRA Form 7.13) before the issue of legal representation had been canvassed (neither had the parties agreed to legal representation nor had an application for legal representation been determined by the CCMA at such stage).  Does the CCMA have the requisite jurisdiction to arbitrate an alleged unfair dismissal dispute in such circumstances?

In Pick ‘n Pay Retailers, the CCMA, per Commissioner Grobler, dealt with this issue as follows:

  1. in the matter of Adams v National Bargaining Council for the Road Freight and Logistics Industry and Others (C700/16) [2018] ZALCCT 36 (7 September 2018), the labour court was called upon to review a jurisdictional ruling issued by a commissioner that the said bargaining council lacked the necessary jurisdiction to determine a dispute at conciliation in circumstances where the applicant’s attorney had signed and submitted the LRA form 7.11 (as well as the LRA form 7.13);
  2. while it is trite that legal representation is not permitted at conciliation, the labour court went further when it analysed the rules which regulate proceedings at the bargaining council. The court opined that the NBCRFLI rule 27 was almost word for word the same as CCMA rule 25, that is, that legal representation is not automatically granted in instances where an employee was dismissed for misconduct or capacity;
  3. it is not in dispute that the applicant in casu was dismissed for misconduct;
  4. the court, per Snyman AJ, then turned its attention to the dictionary meaning of the word ‘entitled’ which appeared in the NBCRFLI rules, as well as in CCMA rule 25(1)(c), before it held, at paragraph [24] of the judgment, that:

‘The dictionary definition of “entitled” is “having the right or permission to do something”, or the “enforceable right to claim something”.  Synonyms for the word in this context are “qualified” or “authorised”.  Considering these definitions, the applicant does not have the enforceable right to be represented by Rossouw, who in turn would not be authorized to represent the applicant.  Simply put, Rossouw is not entitled to represent the applicant, and as such cannot sign the dispute referral forms.’;

  1. thereafter, the court, accordingly, held, at paragraph [23]:

‘It follows that, applying the above considerations, and conducting a textual, logical and common sense reading of the NBCRFLI Rules, the applicant’s attorney, Rossouw, was not “entitled” to represent the applicant in either of the conciliation or arbitration proceedings.’; and

  1. consequently, the CCMA held that it lacked the requisite jurisdiction to arbitrate the matter.

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?