Until recently, it was trite law that if a party to a dispute cannot appear (either in person or represented) at the arbitration proceedings, and that party had referred the dispute to the Commission, the Commissioner may dismiss the matter. Typically, in the instance where the applicant is a no show a dismissal ruling will follow.[1]
In the two latest Court rulings, however, the Judges have taken a different stance and this shapes how the CCMA will now deal with the non-attendance of the referring party.
The Court in the Glencore case held that in several matters, the Labour Court lacks the necessary jurisdiction to hear the review until reinstatement of that review application. The same is also true when a case has been dismissed within the contemplation of the enabling section. The CCMA lacks the jurisdiction therefore, the matter must first be reinstated.
Similarly, where a matter has been dismissed within the contemplation of the enabling section, the CCMA lacks jurisdiction until the matter is reinstated.
The Court concluded in the Glencore judgment that “dismissing a matter in the context of section 138 (5) (a) means that the dispute is withdrawn alternatively that the other party is absolved with the consequences that unless and until arbitration is requested again, the CCMA lacks jurisdiction in the same way this Court lacks jurisdiction over a deemed withdrawn review. An aggrieved party has two options available to it. Either the decision to dismiss the matter is reviewed within the contemplation of section 158 (1) (g) given the fact or a functionary effects the dismissal exercising statutory powers, or a re-request for arbitration of the dispute is made.
The merits of the dispute could not have been resolved.
In the more recent Solomon’s case, the court relied heavily upon, as well as supported the judgement of the Glencore case and held that “Where a matter is dismissed under section 138 (5) (a), a rescission application is not competent.”
To support these current judgements, it became clear what direction the CCMA is moving towards after a directive was issued recently. This directive provided new building blocks on how Commissioners should dismiss a matter in terms of S138 (5)(a) .
The directive stipulates that should a referring party fail to attend the proceedings, the presiding commissioner should deal with the matter accordingly:
Dealing with non-attendance:
- Attempt to establish the reason for non-attendance;
- If there is a good reason for non-attendance, same should be recorded, and the matter should be rescheduled for arbitration;
- If the non-attendance is, however wilful or unexplained or the reason given is not reasonable, the commissioner may exercise their discretion and dismiss the matter – the matter will then be removed from the roll and reflect as “abandoned on the CCMA system;
- The commissioner should fill out the prescribed form, which shows that the matter has been removed from the roll. In which case the applicant may request for the matter to be re-enrolled;
- Once the matter has been removed from the roll, the CCMA must notify all the relevant parties;
- It is prudent to note that a decision to dismiss in terms of S138(5)(a) cannot be rescinded as it was in the past as per S144 of the LRA;
Dealing with the aspect of the request for re-enrolment:
- The referring party who was absent must complete and sign the prescribed form, namely the “Request for re-enrolment” form indicating a reason for their absence;
- This request must be completed within a reasonable time and should be accompanied by a reasonable explanation for non-attendance;
- The Provincial Senior Commissioner or designated commissioner must consider the aforesaid application and whether the request for re-enrolment should be decided on the papers only and or with no opposing submissions from the opposing party;
- Once a decision has been made, it should be communicated to the relevant parties.
- Where the request is refused, the matter will remain closed. The only further aid will be in the form of a review application at the Labour Court;
Conclusion
The new directive clearly creates a basis in which the re-enrolment issue is decided in stead of a party previously applying for rescission. The stance now taken by the CCMA is that the decision to dismiss is no longer a ruling in the legal context of the word but merely an administrative function that the commissioner must fulfil.
The most prominent change because of the Solomon’s judgment is that a decision to dismiss in terms of S138(5)(a) cannot be rescinded as it was in the past, as per S144 of the LRA;
All pending rescission applications regarding dismissed matters will now have rulings issued, stating that the CCMA lacks jurisdiction to entertain the rescission application. The referring party will utilise the avenue stipulated by the directive.
This new venture can lead to many frustrations for the Respondent/ Employer since the matter will not reach finality there and then. They cannot oppose the request, not to mention the cost implications and productivity loss with the witnesses made available to testify at the arbitration.
It is further important to note that the status quo remains where a Respondent / Employer fails to attend the arbitration.
Do not hesitate to contact your nearest SEESA Labour legal advisor in the event that you need more information on the above topic. Alternatively, “SMS” the word “SEESA” to 45776 and we will contact you.
About the author:
Eljo van der Walt started her career at SEESA’s George branch as a Labour legal advisor. She obtained a Bachelor of Law (LL.B degree) from the University of the Free State in 2010. In 2011 she obtained a Master of Law (LL.M degree) from the University of the Free State. She completed her articles of Clerkship in 2012. After admission she practiced as an attorney for 5.
Resources:
- Section 138,144 and 158 of the Labour Relations Act (LRA);
- Denroy Leonard Solomons v the CCMA and Others;
- Glencore Operations Sa (Pty) Ltd v the CCMA and Others;
- “Dismissal of the matter”, Section 138(5)(a) of the LRA: By Porthri Blauw;
- Directive on 138(5)(a) dismissal and re-enrolment 15 October 2021;
[1] Section 138(5)(a) of the Labour Relations Act No 66 of 1995, as amended