“Jurisdiction” is a word used very often by legal advisors, especially with regards to matters referred to the CCMA or a specific Bargaining Council.
Jurisdiction can be defined as the Court’s/CCMA’s competence or power to resolve or hear the matter or issue between the parties.
Matt is employed at a company called CARRZ which specialises in buying and selling second hand vehicles. CARRZ is registered with the applicable Bargaining Council, MIBCO, which prescribes specific minimum payments to be made to the Council with regards to every employee.
CARRZ dismissed Matt for dishonesty. Matt decides to refer his dismissal as an unfair dismissal to the CCMA.
MIBCO however has its own Dispute Resolution Centre (DRC) which employs specialised Commissioners to arbitrate matters referred by employees, like Matt.
The question then arises whether the CCMA has the jurisdiction/power to arbitrate the matter if CARRZ is registered with MIBCO which has its own DRC in which to arbitrate Matt’s referral?
Section 147(2)(a)(ii) and/or (3)(a)(ii) of the Labour Relations Act reads as follows:
“ (2)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may-
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.”
“(3)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may-
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.”
Section 147(2) & (3) confirms that should it become apparent that either both parties to the dispute are parties to a council or one party or more to the dispute fall within the registered scope of a council and the other party(ies) are not parties to the council:
- The Commissioner at the CCMA MAY refer the dispute to the Council for resolution;OR
- Appoint a Commissioner OR Confirm the Appointment of the Commissioner – to resolve the dispute at the CCMA.
In the matter of Joy Global Africa (Pty) Ltd v CCMA and Others [2015] ZALAC the Appellants referred the matter to the Labour Appeal Court as they requested the Court to clarify the CCMA’s jurisdiction herein.
In this matter the Commissioner assumed that he was entitled to continue dealing with the matter after it came to his attention that the matter might have to be resolved by the dispute resolution centre of the MEIBC.
The Labour Appeal Court found that the Commissioner herein could only proceed to arbitrate the dispute where the CCMA elects to appoint a Commissioner or to confirm the appointment of a Commissioner who has already been appointed.
After this step had been taken, it is for the CCMA or its delegate to determine whether to refer the matter to the appropriate Bargaining Council or to appoint or confirm an already appointed Commissioner to resolve the matter.
The Labour Appeal Court found that whether the CCMA has the jurisdiction to resolve a matter in these circumstances does not lie with the Commissioner but with the CCMA itself after taking sections 147(2) & (3) of the Labour Relations Act into consideration.
It is advisable that CARRZ confirm the fact that they, as a company, and Matt, as an employee, are registered with MIBCO.
The Commissioner will have to follow the above mentioned sections to ascertain whether the CCMA will confirm their jurisdiction to adjudicate the matter or whether the matter will be referred to MIBCO to be adjudicated by specialist Commissioners at the various DRC’s.
Article by Meghan Laubscher
Dispute Resolution Official – Bloemfontein