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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.