With terms like “business unusual” or “the new normal” being touted more and more frequently, are we expected to accept that existing rules simply don’t matter or that they have been temporarily abandoned?

 

Above is referring to the rules to which the Commission for Conciliation, Mediation and Arbitration (CCMA) are bound, essentially those that permit the CCMA to operate.

 

The CCMA is not a newly formed institution, it has existed for almost as long as the 25 years that the Labour Relations Act (LRA) has been in existence. The powers that the CCMA exercises, are conferred on it by the provisions of the LRA and as an extension thereof, its own rules (CCMA rules). The CCMA may not exercise any powers beyond what is conferred on it by the LRA. Therefore, when the CCMA proceeds to schedule disputes for Conciliations, Arbitrations or any other process, it must do so in terms of the provisions of the LRA.

 

It has recently come to our attention that the CCMA is scheduling various processes in a manner inconsistent with its authority, often under the guise of efficiency. One of the ways the CCMA is transgressing is by scheduling arbitrations outside of the provisions of S191(5) of the LRA. This section provides the circumstances under which Arbitrations may be scheduled.

 

THE PROVISIONS OF THE LRA

191) Disputes about unfair dismissals and unfair labour practices:

(1) (a) If there is a dispute about the fairness of a dismissal or a dispute about an unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to –

(i)  a council, if the parties to the dispute fall within the registered scope of that council; or

(ii)  the Commission, if no council has jurisdiction.

(2)  The council or the Commission must attempt to resolve the dispute through conciliation.

(3)  If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral, and the dispute remains unresolved —

(a) the council or the Commission must arbitrate the dispute at the request of the employee if –

(i)  the employee has alleged that the reason for dismissal related to the employee’s conduct or capacity, unless paragraph (b)(iii) applies;

(ii)  the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187;

(iii)  the employee does not know the reason for dismissal; or

(iv)  the dispute concerns an unfair labour practice; or

 (5A) Despite any other provision in the Act, the council or Commission must commence the arbitration immediately after certifying that the dispute remains unresolved if the dispute concerns –

(a)  the dismissal of an employee for any reason relating to probation;

(b)  any unfair labour practice relating to probation;

(c)  any other dispute contemplated in subsection (5)(a) in respect of which no party has objected to the matter being dealt with in terms of this subsection.

 

Section 191(5) supra, creates two circumstances under which the CCMA may schedule a matter for arbitration. First, the council or commissioner has certified that the dispute remains unresolved. Second, a period of at least 30 days has expired since the dispute was referred. Regardless of which applies, the employee is nevertheless required to request arbitration, which is done by serving a completed 7.13 request for arbitration form on the employer and thereafter filing the document at the CCMA. Therefore, the CCMA may not schedule an arbitration process without having received the prescribed document.

 

Section 5A of the LRA sets out the circumstances under which the employee is not required to file a 7.13 request for arbitration. The list is exhaustive, and therefore the circumstances remain limited to Probationary disputes and disputes which remain unobjected in terms of Rule 17 of the CCMA rules.

 

115) Functions of Commission

(1)  The Commission must –

(a)  attempt to resolve, through conciliation, any dispute referred to it in terms of this Act;

(b)  if a dispute that has been referred to it remains unresolved after conciliation, arbitrate the dispute if –

(i)  this Act requires arbitration, and any party to the dispute has requested that the dispute be resolved through arbitration…

 

 

Section 115 of the LRA, which provides for and describes the functions of the CCMA, reinforces the position that a dispute may be arbitrated at the request of either party.

 

THE RULES OF THE CCMA

Section 115(2A) of the LRA provides as follows:

The Commission may make rules regulating –

  1. the practice and procedure in connection with the resolution of a dispute through conciliation or arbitration;
  2. the process by which conciliation is initiated, and the form, content and use of that process;
  3. the process by which arbitration or arbitration proceedings are initiated, and the form, content and use of that process;

 

The rules of the Various councils or CCMA are created to give effect to the provisions of the LRA. They create a framework of procedural guidelines and instruct the personnel of these institutions how to operate. The rules may not deviate or be inconsistent with the provisions of the LRA.

 

Rule 18 provides that parties may request the Commission to arbitrate a dispute by serving and filing a 7.13 form, in accordance with its own rules. There are no provisions within the Rules that permit the CCMA to schedule an arbitration process without the filing of the abovementioned document, save for the circumstances set out in Section 191(5A) of the LRA.

 

THE CCMA DIRECTIVES

 

In light of the COVID-19 pandemic, the CCMA has issued numerous directives which regulate the manner in which it operates. The purpose of the directives is to create an environment that is safe for the public to attend and reduce the risk of transmission of the Coronavirus. It serves to restrict access to CCMA premises across South Africa and create alternative means by which disputes can be referred and resolved.

 

The Director draws its powers to make such directives from Section 118 of the LRA. The powers of the Director of the CCMA are restricted by the provisions of the LRA and any directive issued, which is inconsistent with the LRA, is invalid.

 

118) Director of Commission

(2)  The Director must –

(a)  perform the functions that are

(i)  conferred on the Director by or in terms of this Act or by any other law;

(ii)  delegated to the Director by the governing body;

(b)  manage and direct the activities of the Commission…

 

On 30 July 2020, the Director of the CCMA issued a directive, which repealed previous directives issued on 8 and 14 May respectively.

 

Paragraph 2 provides: “These Directives set out how, and under what conditions, matters enrolled in the CCMA will be dealt with until such Directives are repealed. These Directives must be read together with the Rules for the Conduct of Proceedings before the CCMA, as amended (hereinafter referred to as the ‘CCMA Rules’) and all applicable statutes.”

 

Although the directive is silent on the manner in which arbitration proceedings are requested, it appears that a number of commissioners rely on this document to justify non-compliance with the provisions of the LRA. It should be clear from the above provisions that the procedures set out in the LRA may not be circumvented or abandoned. It is submitted that attempt to do so by a Commissioner will be a reviewable irregularity.

 

It is therefore important to request a copy of the 7.13 request for arbitration form at the commencement of the arbitration. Should the commissioner fail to produce such a document, the arbitration should be removed from the roll, and the procedural defect remedied.