We know that employers are taken to the CCMA or Bargaining Council for a variety of reasons whereby they are required to incur costs to defend their case. Under which circumstances will you as an employer be entitled to claim for costs?


Firstly, what is an order of costs? 

Costs are expenses incurred in order to have a dispute resolved through arbitration. Section 138(10) of the Labour Relations Act provides that a Commissioner may make an order for costs according to the requirements of the law and fairness. Cost awards may include legal costs, disbursements such as travelling and witness expenses. The CCMA rules do not expressly provide for an attorney and own client costs, but rather makes provision for actual costs incurred. Employers must be reminded that Commissioners may request proof of said costs which will have to be provided in an attempt to succeed for an order of costs. Commissioners are limited to Schedule A of the Magistrates Court Tariffs as a guide in awarding costs unless the parties have agreed to a higher cost tariff.


When will an order for costs be awarded?

Rule 39 (1) of the CCMA Rules provides that, based on fairness, a Commissioner has discretion on whether to award an order of costs against either party based on the following factors:

  1. a) The measure of success that either party achieves in an arbitration;
  2. b) Considerations of fairness that weigh in favour of or against granting an order of costs;
  3. c) Any “with prejudice” offers made during settlement negotiations;
  4. d) Whether or not a party acted in a frivolous and vexatious manner (A matter is deemed frivolous if it is entered into without any merit or perused purely to inconvenience and waste the Employer’s time);
  5. e) The effect of the order of costs on the continued employment relationship;
  6. f) Terms of any agreement between the parties;
  7. g) The importance of the issues raised during the arbitration;
  8. h) Any other relevant factor that the Commissioner may deem appropriate.


Case law – Order of costs awarded in favour of the Employer

In Ndwalane v The Magic Company (Pty) Ltd (2006, 5 BALR 497) the employee was employed on a fixed term contract. When the fixed term contract expired, and he was told to leave, he lodged an unfair labour practice case against the employer. However, he brought no proof of unfairness, and the arbitrator found his case to have been frivolous and vexatious. The employee was ordered to pay part of the employer’s legal costs.

In Rose Ramchau v Ackerman (NP856-01) the Commissioner awarded an order of costs in favour of the employer because the employee had “dragged the company to the CCMA for an utterly hopeless case…”

Similarly, in Ntombela v SMT Health Solutions (KNDB10811-08) the Commissioner found that an employee who was “argumentative, evasive and less than honest” during arbitration proceedings should get an order of costs against him.


If a commissioner grants costs, a bill of costs must be drawn up and served to the other parties, as well as to the CCMA. The CCMA will then tax the bill, which means that it will assess the amount claimed against the amount that is allowed to be claimed as set out in the Tariff. Once it has been taxed, that is the amount which is allowed by the taxing officer to be claimed from the other party.


Article by: Tammy Philpott

Dispute Resolution Official – Gauteng