In terms of section 138(5)(a) of the Labour Relations Act No 66 of 1995, as amended, it states that if a party to a dispute fails to appear in person or to be represented at the arbitration proceedings, and that party had referred the dispute to the Commission, the commissioner may dismiss the matter. In practice, this has always taken place in the form of a commissioner issuing a dismissal ruling when the applicant party has failed to appear for the matter.

The above practice is common procedure in the various CCMA’s across the country, however, in the recent Labour Court cases of Glencore Operations Sa (Pty) Ltd v the CCMA and Others, and Denroy Leonard Solomons v the CCMA and Others, the Court provided guidance relating to the dismissal of matters by commissioners in terms of section 138(5)(a), and it is the content and consequences of these two judgments which give rise to this article as it will change the way and manner in which the CCMA now deals with dismissing of a matter due to non-attendance of the referring party.

The Court in the Glencore case held that in several matters where a review application is deemed withdrawn, the Labour Court lacks the necessary jurisdiction to hear that review until reinstatement of that review application. Similarly, where a matter has been dismissed within the contemplation of the enabling section, the CCMA lacks jurisdiction until the matter is reinstated.

The Court addressed the issue of whether a decision to dismiss a matter in terms of section 138(5)(a) of the LRA can be rescinded in terms of section 144 of the LRA. In this regard and at paragraph 20 of the Glencore Judgment, the learned Judge Moshoana stated as follows:

“Withal, I take a view that rescission is not an answer, nevertheless. I say so because, what [Commissioner] Mashego did was to perform a statutory function. Dismissal of a matter is a statutory function in terms of the enabling section. Section 158 (1) (g) of the LRA necessarily empowers the Labour Court to review the performance of any function provided for in the LRA on any grounds that are permissible in law.”

The Court further held at paragraph 21 of the Glencore Judgment that “section 144 is specifically reserved for arbitration awards and rulings. At first blush, it can be argued that a dismissal decision is a ruling. In my view, its appropriate label should be an exercise of a statutory function. A ruling is defined as an authoritative pronouncement, especially a judicial decision. In my view, a ruling would arise where a pronouncement is made on a dispute presented to an arbitrator. However, where a decision obtains fortification from the provisions of a specific section of the law, that is an exercise of a statutory power. As evidence that a statutory power was exercised, one simply has regard to the jurisdictional facts to enable the exercise of that power. Whereas a pronouncement in a form of a ruling may require something more. In order to dismiss the matter – a jurisdictional statutory power – a commissioner requires the presence of the following jurisdictional facts: (a) failure to appear or to be represented at the arbitration proceedings; and (b) the party failing to appear having referred the dispute. Once those facts emerge, a commissioner may, at his or her discretion, dismiss the matter. This, in my mind, although at first blush has the hallmarks of a ruling, does not amount to a ruling within the context of the LRA. If it is, one observes a clash for turf between the CCMA acting under section 144 and the Labour Court acting under section 158 (1) (g) of the LRA. The proper approach is to have statutory exercise of functions reserved for the Labour Court and the pronouncements, which are ordinarily administrative in nature, to be tackled by the CCMA.”

In substantiating the abovementioned, the Court considered the definition of a dispute and section 191 of the LRA and held at paragraph 24 of the Glencore Judgment, “that in terms of the CCMA rules, a party requests arbitration by completing the prescribed forms. For the requesting party, a dispute shall be resolved if a finding is made on the disagreement about the fairness of the dismissal. It is worth repeating at this stage that when a commissioner dismisses a matter, he or she does not resolve the disagreement. Thus, in my view, there can be no award issued nor a ruling issued but only a statutory function being performed. For the purpose of records and posterity, such an exercise of statutory power in terms of the CCMA rules must be recorded in a written ruling. Naming it a ruling is, in my view, a measure of convenience. The enabling section does not mention a ruling but simply states: ‘commissioner may dismiss the matter’.”

The Court went further to address the issue of what a dismissal of a matter is. The Court held further in the Glencore Judgment at paragraph 29 thereof that “by dismissing a matter, a commissioner does not deal with the merits of an unfair dismissal dispute. Therefore, dismissal in this instance must be akin to a striking off and or withdrawal of the dispute. Where a party does not appear and had referred a dispute, it is not incongruent to conclude that such a party has withdrawn the dispute. With that possibility, until arbitration is re-requested as it were, the commissioner lacks jurisdiction over a dismissed dispute.”

The Court concluded at paragraph 31 of the Glencore Judgment that “dismissing a matter in the context of section 138 (5) (a) means that the dispute is withdrawn alternatively that the other party is absolved with the consequences that unless and until arbitration is requested again, the CCMA lacks jurisdiction the same way this Court lacks jurisdiction over a deemed withdrawn review. In my view, an aggrieved party has two options available to it. Either the decision to dismiss the matter is reviewed within the contemplation of section 158 (1) (g) of the LRA, given the fact that a functionary effects the dismissal exercising statutory powers or a re-request for arbitration of the dispute is made. There is no room for res judicata because the merits of the dispute could not have been resolved.”

In the more recent Solomons case, the issue of dismissing a matter in terms of section 138(5)(a) was once again at the forefront of the Court. In this case, and without traversing the entire factual matrix of the Solomons case, the Court relied heavily on and supported the judgement of the Glencore case and held that, “Where a matter is dismissed within the contemplation of section 138 (5) (a) of the LRA, a rescission application is not competent.”

The effect of both judgments is far-reaching, and both the Solomons and Glencore judgements establish very important principles that may have extensive implications and considerations on how the CCMA and its users may henceforth address the dismissal of a matter as contemplated by section 138(5)(a) of the LRA. To this end, and only a few days ago, the CCMA issued a directive to all of its Commissioners, which directs how dismissal of a matter in terms of S138(5)(a) will be dealt with. In summation and when reading directly from the new directive, the directive stipulates that should a referring party fail to attend the proceedings, the presiding commissioner should do the following:

Dealing with non-attendance:

  • Attempt to establish the reason for non-attendance;
  • Should it become apparent to the commissioner that there is a good reason for non-attendance, the commissioner should record the said reason on the CCMA file and direct that the matter should be rescheduled for arbitration;
  • Should it appear that the reason for non-attendance is either wilful or unexplained or the reason given is not reasonable, the commissioner may exercise their discretion and dismiss the matter – the matter will then be removed from the roll and reflect as “abandoned on the CCMA system;
  • If such a scenario as above occurs, the commissioner should fill out the prescribed form which indicates that the matter has been removed from the roll and that the absent referring party may request for the matter to be re-enrolled;
  • Once the matter has been removed from the roll, the CCMA must inform all the relevant parties of same by sending a copy of the decision to all the parties;
  • Importantly, and probably the most prominent change as a consequence of the SOLOMONS judgment is that a decision to dismiss in terms of S138(5)(a) cannot be rescinded as it was in the past as per S144 of the LRA;

Dealing with the aspect of the request for re-enrollment:

  • The referring party who was absent must complete and sign the prescribed form, namely the “Request for Re-enrollment” form indicating reason for their absence;
  • This request must be made within a reasonable time and must contain a reasonable explanation for non-attendance;
  • The Provincial Senior Commissioner or designated commissioner must decide whether the referring party has provided a satisfactory explanation for absence and whether the request for re-enrollment should be decided on the papers only and or without the need for opposing submissions from the opposing party;
  • Once a decision has been made as to whether to re-enroll the matter or not, that decision must be communicated to the relevant parties. In an instance where the request is refused, the matter will remain closed, and the only further process that may take place would be in the form of a review application at the Labour Court;

From the face of it, it is clear that the new directive creates a similar but still noticeably different manner or framework in which the issue of re-enrollment is decided as opposed to a party previously applying for rescission and an employer party then having the opportunity to oppose the application. The reason for this is that the decision to dismiss is no longer a ruling in the legal context of the word but merely an administrative function that the commissioner must fulfil. What has further become apparent is that all existing rescission applications, those pertaining to matters that were dismissed, will now have rulings issued whereby it will be stated that the CCMA lacks jurisdiction to entertain the rescission application, the referring party in that instance will then need to follow the new route as dictated by the directive.

While there are concerns and questions raised by the new directive, probably the biggest concern from an employers’ point of view is naturally that by not getting an opportunity to oppose the request or have the matter reach finality at the intended sitting, there may be cost implications as well as business interruptions due to having witnesses being available to testify at the proceedings. In this regard, CEO will always strive to ensure that our members’ interests are protected in as far as possible. Click here for the full copy of the directive, along with its relevant attachments, for a better understanding of the new directive.

Article by: Porthri Blauw
Dispute Resolution Official – George