Employers often find themselves dragged to the CCMA by an employee without any knowledge or understanding of the reasons why and how exactly the matter can even proceed at the CCMA. This may occur for numerous reasons including, but not limited to, the simple process of referring disputes to the CCMA; the fact that referring a matter to the CCMA is free of costs, and that the CCMA does not require an employee to have legal representation.


There are also instances where an aggrieved employee refers a matter to the CCMA with the sole intent to vindictively extort money out of the employer or to evade pending disciplinary action. The employee’s referral in such an instance amounts to dishonesty, but also waste’s the CCMA’s time and resources as well as that of the Employer. In response to dealing with this kind of disputes, the CCMA has resorted to making cost orders against such an employee, however claiming these costs for an employee can sometimes be nearly impossible.


This leaves an Employer in the untenable position of having to defend completely vexatious claims and asking why such a dispute cannot be thrown out once hearing the employee’s version. Such a rule exists in the Courts of South Africa, namely Absolution from the Instance, but does it apply at the CCMA?


Absolution from the Instance can be defined as an act of freeing from blame and releasing from consequences, obligations or penalties relating to a particular case. In South African law, the rule of Absolution from the Instance amounts to an order granted to dismiss the plaintiff’s claim on the basis that no order can be made in respect thereof.


Unfortunately for an Employer it has been held that the rule of Absolution from the Instance is not applicable within the scope of the CCMA Rules, as each party must be given a proper and fair opportunity to present their respective cases at the CCMA, by proceeding with the Conciliation and Arbitration despite the employee referring what is known as an ‘empty case’.


In Minister of Safety and Security v Madisha and Others (JR161-07) [2008] ZALC 106; [2009] 1 BLLR 80 (LC) ; (2009) 30 ILJ 591 (LC) (29 July 2008) , the Supreme Court of Appeal noted the importance of the requirement that the Commissioner grants each party a proper and fair opportunity to present their cases to an unbiased Arbitrator. Jacobs J has accordingly contended that the requirement for the application of the common law audi alteram partem rule, read with section 138(1) of the Labour Relations Act, results in the Commissioner’s failure to deal with the substantial merits of the disputes if he grants absolution of the instance. The audi alteram partem rule serves to provide an aggrieved party with a right to present his side of the story to the commissioner


Jacobs J finally held that an arbitrating Commissioner does not have the power to grant absolution of the instance. Where an arbitrating Commissioner does so, the Commissioner would be found to have committed a gross irregularity in the conduct of the Arbitration proceedings and exceeded his or her powers as a Commissioner which in turn renders the arbitration award reviewable.


It is clear from the above that an Employer can be dragged to the CCMA by an aggrieved employee for any reason within the ambit of the law, whether or not the dispute has any merits. Employer and employee will be required to defend their case from start to finish as a Commissioner will only be able to submit his or her Ruling on the hearing of all evidence from both parties.


Article by: James Guthrie-Strachan


Dispute Resolution Official – DURBAN