By Lara Keil (Candidate Legal Practitioner) under the guidance of Tzvi Brivik (Director)
In terms of section 191 (5A)(c) of the Labour Relations Act (hereafter “LRA”), where no party objects, the Commission for Conciliation, Mediation and Arbitration (hereafter “CCMA”) or Bargaining Council must immediately commence arbitration where the dispute remains unresolved at conciliation. This objection, according to the CCMA Rules, must be served on the CCMA as well as the other party to the dispute at least 7 days prior to the scheduled Con-Arb.
In the case of Valinor Trading 133 CC t/a Kings Castle v the CCMA and two Others, an employee referred his unfair dismissal to the CCMA and the Con-Arb was subsequently scheduled for 10 September 2018.
Three days prior to the scheduled Con-Arb, the employer filed its objection. At conciliation, the employer was not present and once the dispute remained unresolved, the Commissioner elected to proceed to arbitration. The reasoning was that because the objection was not filed in time, there was “no valid objection”. The commissioner proceeded to issue a default arbitration award (hereafter “default award”). Upon learning of the default award against them, the employer applied to have the award rescinded but this application was dismissed by the commissioner in question (hereafter “the ruling”). The employer thereafter filed an application to have the ruling rescinded but this application was also dismissed. With no alternative, the employer launched an application to the LC seeking to review and set aside the previous two rulings of the Commissioner.
The Labour Court was therefore required to consider whether the commissioner was empowered to ignore an objection purely on the basis that it was not raised at least seven days before the enrolment date as provided for in the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (hereafter “CCMA Rules”). In its judgment, the Labour Court noted that Rules are designed for conducting proceedings and are not meant to override a statutory provision. Worded differently, “Rules exist for the Court and not the Court for the Rules”.
This is further supported by section 210 of the LRA which provides that if any conflict relating to matters dealt with in the LRA arises between the LRA and the provisions of any other law besides the Constitution, the provisions of the LRA will prevail.
Therefore, where a party objects to Con-Arb, a commissioner is not empowered to proceed with the arbitration or ignore the objection, irrespective of when the objection was filed. The LC held further that where a commissioner ignores an objection and elects to proceed with arbitration, any decision that follows is a nullity and ought to be considered as such. The LC was thus of the opinion that an objection immediately equals no commencement of arbitration because the party who objects, acquires the right to not have arbitration proceedings commence. This right, as held by the LC, can neither be taken away by the Rules nor ignored by a commissioner.
Proceeding with the arbitration in these instances is inconsistent with section 34 of the Constitution which guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
It is thus worth noting that even where an objection does not comply with the CCMA Rules, this does not detract from the fact that a party has objected. Commissioners across the country will do well to remember that.
At Malcolm Lyons and Brivik Attorneys, Inc. we specialise in Road Accident Claims and assist by assessing your case and taking the appropriate legal measures to ensure you receive the best compensation you deserve. We work on a no-win-no-fee basis wherever possible.
Lara Keil (Author) under the guidance of Tzvi Brivik (Director)
Candidate Attorney at Malcolm Lyons & Brivik Inc.
LLM Candidate: Labour Law (UWC)
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