The practice in a Con/Arb process was that, to separate the two (2) processes; a party should file an objection to Con/Arb at least seven (7) days prior to the hearing date. To refresh one’s memory, the Con/Arb process is where the Arbitration commences immediately after the Conciliation if the Conciliation process is unsuccessful.
Commissioners have applied the principle that if an objection is not served and filed timeously, the Arbitration will commence despite a party objecting to the Con/Arb process. This very practice came under scrutiny in the recent Labour Court (LC) judgment, Valinor Trading 133 CC t/a Kings Castle v The CCMA and Others (JR292/19)  ZALCJHB 10 (3 February 2023). In this case, the matter was referred as an unfair dismissal dispute and set down for Con/Arb. The Employer filed an objection to the process three (3) days prior to the hearing. The Commissioner, however, decided to commence with Arbitration in the absence of the Employer, despite the “late” objection filed, and subsequently issued a Default Award in favour of the Employee. The Employer applied to have the Default Award rescinded, and the Commissioner dismissed the application. The Employer thereafter applied to have that Ruling rescinded, as well. However, the Commissioner again dismissed the application. Thus, the application came before the Labour Court to review and set aside both Rulings.
The question that was raised for determination by the Court was, “Is the Commissioner empowered to ignore an objection purely on the basis that it was not raised at least seven (7) days before the enrolment date as provided for in the CCMA rules?”
The simple answer to the above question is “No”. The Court provided an interpretation of Section 191(5A) of the Labour Relations Act (LRA), which allows for a Commissioner to proceed with an Arbitration after certifying that the dispute remains unresolved; the dispute relating to:
Section 191(5A)(c) – Any other dispute contemplated in subsection (5)(a) in respect of which no party has objected to the matter being dealt with in terms of this subsection.”
Rule 17 of the Commission for Conciliation, Mediation and Arbitration (CCMA) Rules deals with the conduct of a Con/Arb in terms of Section 191(5A) of the LRA. It is important to note that Rule 17 only indicates what should happen where an objection is filed later than the seven (7) days provided for, i.e., closer to the hearing date. Furthermore, Rule 35 of the CCMA Rules provides that if the Rules are not complied with, that condonation may be granted on good cause shown. The Court stated that the LRA does not allow an Arbitration to commence if an objection is filed. An Arbitration will only commence immediately after the Conciliation if no objection has been filed, as per Section 191(5A)(c) of the LRA.
If the Arbitration commences despite an objection being filed “out of time”, it will create a conflict between the Rules and the Act. Thus, in accordance with Section 210 of the Act, the Act prevails if a conflict arises between the Rules and the Act. Therefore, Arbitration should not take place even when an objection is filed “late” and within the seven (7) day period prior to the hearing date.
The Court stated that an objection prohibits the occurrence of an Arbitration commencing immediately. A party objecting acquires the right not to have the Arbitration commence. The Court said, “Such a right cannot be taken away by the Rules nor be ignored by a Commissioner”.
Suppose a party finds themselves in a situation whereby an objection is filed “out of time” and within the seven (7) day period prior to a hearing date. In that case, the above judgment provides that the objection cannot be ignored.
Article By: Lauren Moodaley
Dispute Resolution Official – Cape Town