Consolidation of disputes is simply when two cases or matters are consolidated or combined into one hearing due to the fact that they have the same parties concerned and/ or related to the same set of facts or circumstances. This occurs at the Commission for Conciliation Mediation and Arbitration as well as different Bargaining Councils for various industries such as Engineering or Transport Councils.
Consolidation of labour disputes is governed by section 135(3)(A) of the Labour Relations Act which states:
“If a single commissioner has been appointed in terms of subsection (1), in respect or more than one dispute involving the same parties, the commissioner may consolidate the conciliation proceedings so that all the disputes concerned may be dealt with in the same proceedings”.
How are disputes consolidated?
The consolidation of disputes is given effect to by Section 28 of the CCMA rules which states:
“The Commission or a commissioner, of its own accord or on application, may consolidate more than one dispute so that the disputes may be dealt with in the same proceedings.”
It can be therefore seen from this rule that the consolidation of proceedings can be decided by a commissioner alone, without a request from the parties to the proceedings or alternatively by way of application made either by the Applicant or the Respondent.
Why disputes are consolidated?
Firstly, multiple disputes result in a plethora of cases which means that there would be a large amount of cost involved from the aspect of litigation such as lawyer’s fees and travel costs. In addition, it would also mean time lost in terms of productivity and therefore revenue when witnesses and parties are required to appear in multiple cases. Secondly, a plethora of cases is unnecessarily time consuming, whereby parties may not be able to take the time off work to obtain an outcome and therefore obtain relief which is a hindrance to justice.
The third and most important aspect, is a risk of an inconsistent outcome of different disputes. When cases contain the same set of facts, a ruling can be made that could be inconsistent or at odds with the outcome of another case. Likewise, if one matter related to an unfair labour practice and the other matter concerned an unfair dismissal, such as if an employee was dismissed for failing to accept a demotion which he deems unfair. Two different cases could result in conflicting findings.
Consolidation of disputes in terms of the Basic Conditions of Employment Act
Section 74 of the Basic Conditions of Employment Act (hereinafter referred to as “the Act”), governs the consolidation of disputes related to its provisions. Section 74(1) states that:
“A dispute concerning a contravention of this Act may be instituted jointly with proceedings instituted by an employee under part C of this Chapter.”
Part C refers specifically to the protection of employees who attempt to exercise or enforce their rights conferred by the Act and are prevented/discriminated against or punished by the employer due to their actions. If an employer for example refuses to comply with a provision of the Act discriminates against an employee who is trying to enforce their rights according to the Act, these disputes are legally entitled to be consolidated to another dispute regarding the contravention of another section of the Act.
Section 74(2) and 72(2)(A) of the Act states that:
“(2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of the Act if the claim has not prescribed.
(2A) No compliance order may be issued or enforced and no other legal proceedings may be instituted or enforced in respect of any claim that has been determined in terms of subsection (2)”.
The Act in this section specifically dictates that a matter concerning a monetary amount owing to the employee can be consolidated into a dispute relating to the unfair dismissal of that employee. This section then prohibits further litigation to the recovery of those moneys that might delay the said employee from obtaining the amount due and owing to him and specifically relates to monies owing after the employment relationship is terminated.
Section 74(3) of the Act further specifies another situation in which a claim for a monetary amount due and owing to an employee can be consolidated with a claim for severance pay as it states:
“(3) A dispute concerning any amount that is owing to an employee as a result of the contravention of this Act may be initiated jointly with a dispute instituted by that employee over the entitlement to severance pay in terms of section 41(6)”.
Section 41(6) of the Act specifically states that:
“There is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to:-
- A Council, if the parties to the dispute fall within the registered scope of that council; or
- the CCMA, if no council has jurisdiction.”
These sections appear to contradict each other as the word “only” used in section 41(6) lead the reader to determine that the dispute will only be dealing with the issue severance pay. However, section 74(3) clearly specifies that this apparent “stand alone” claim can be consolidated into a claim for a monetary amount owing to the employee. This begs the further question of whether the reverse is possible such that a claim for a monetary amount due and owing to an employee can be consolidated into a claim for severance pay in terms of section 41(6) of the Act.
On reading section 41(6) the use of the word ‘only’ indicates the intention of the legislature to ensure that only a claim for severance pay was considered and therefore no other claim. Alternatively, it can be argued that the correct interpretation of section 41(6) was to specifically enable an employee who had a claim for severance pay to seek relief at the CCMA or relevant bargaining council. Usually a claim for a specific monetary amount due and owing to an employee would be dealt with by the Department of Labour which can be a lengthy process however this section specifically confers jurisdiction for the matter to be heard by the CCMA.
In accordance with the principals of justice and fairness and the constitutional right to a in terms of section 23(1) of the Constitution of South Africa 1996, it is proposed that this is the correct interpretation of the Act is lawful. Under a claim for section 41(6) under the Act, the arbitrator is afforded powers to decide on other outstanding monies due and owing to the Applicant provided that the claim had not prescribed. A further indication of this interpretation is the used of the wording, “may be initiated jointly” in section 74(3) of the Act which indicates the intention of the legislature to highlight that both claims initiated individually, such as a singular claim for severance according to section 41(6) and amounts outstanding, can be consolidated irrespective of which claim was bought first. Therefore, a wide interpretation of section 74(3) is required.
Should you require any assistance or advise on the above topic, contact your nearest CEO office.
Article by: Sarah Wood
CEO Dispute Resolution Official – Cape Town