The jurisdiction to arbitrate disputes concerning unfair dismissals is conferred on the CCMA under Section 191 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA). Section 191(5)(b) further contains the respective instances where a dismissal dispute may be referred to the Labour Court for adjudication. This article will specifically deal with Section 191(5)(b)(iii), which is an instance whereby an employee alleges his dismissal was for participation in an unlawful/unprotected strike.
Section 213 of the LRA defines a strike as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.
Section 64 of the LRA sets out the requirements for a strike to be legal or protected and which would then enjoy the protection of the Act. However, should the requirements as per Section 64 not be met, the strike will be deemed unlawful and thus unprotected.
Does this then mean that an employee, who was dismissed for participating in an unprotected strike, must directly approach the Labour Court for relief?
In practice, even though such an employee will have direct access to the Labour Court, the matter may still be referred to the CCMA in the form of an unfair dismissal dispute. The matter will be scheduled before a Commissioner who will attempt to Conciliate the dispute. Should the matter remain unresolved and a certificate of non-resolution be issued, a jurisdictional point needs to be raised that in terms of Section 191 (5) (b), the Commission lacks the required jurisdiction to adjudicate the matter and that the matter needs to be referred to the Labour Court.
The employee party will also have an opportunity to make submissions, whereafter the Commissioner will make a jurisdictional ruling in this regard. In the matter of National Union of Metal Workers and Others v SA Truck Bodies (Pty) Ltd (JS987/05)  ZALC 20;  7 BLLR 648 (LC) (28 March 2007), the Labour Court found that the Applicants had direct access to the Labour Court, in terms of section 191(5)(b) of the LRA as their dismissal was a direct consequence of their participation in an unprotected strike.
In the said case, the court reiterated that as the Applicant’s dismissal was in terms of the said section, it demanded them to go to the Labour Court after the certificate of non-resolution was issued.
Furthermore, in terms of Section 191(6)(a) of the LRA, any party to the dispute may, by way of a formal application, apply to the Commission for the director to refer the matter to the Labour Court.
Notwithstanding the above, Section 141(1) of the LRA provides that where a dispute remains unresolved after Conciliation, the Commission must arbitrate the dispute if a party to the dispute would otherwise be entitled to refer the dispute to Labour Court for adjudication and, instead, all the parties agree in writing to arbitration under the auspices of the Commission.
Parties to a dispute where an employee alleges he was unfairly dismissed due to his participation in an unprotected strike may agree in writing that the Commission arbitrate the dispute, thereby conferring the required jurisdiction.
This type of agreement might make financial sense to some parties as there are no costs involved for parties when the CCMA arbitrates disputes, whereas the Labour Court may attract substantive costs. Furthermore, the CCMA has a quicker turnaround time for finalising disputes, and this option would ensure that the matter is dealt with speedily.
Therefore, employers are encouraged to consider both avenues when dealing with disputes of this nature on a case-to-case basis.
Article by: Ilze Erasmus
Dispute Resolution Official – Gqeberha