One would be forgiven for thinking that an applicant who chooses to withdraw a case against the employer is a final end to the dispute. Recent CCMA and Labour Court decisions tend to indicate otherwise. This article aims to clarify the position and also to advise the employer as to how to deal with this situation when it arises.
Logic dictates, that when one wishes to withdraw a case against the employer that is the end of the dispute. As experience has shown this is far from what is happening at the CCMA. An applicant may withdraw a case in order to pursue the case at the Labour Court, Civil court or merely just to end the dispute. What happens when an employee has a change of heart and then wishes to re-open the very same case against the employer?
For starters the Labour Relations Act number 66 of 1995 and the CCMA Rules govern all aspects in respect of CCMA and Bargaining Council cases. However, there is silence on the question of what happens with a withdrawal that is subsequently re-opened. When the law is silent one has to be mindful of what the courts have said in this regard.
The leading case that speaks to this issue is Ncaphayi v CCMA and others (2011) 32 ILJ 402 (LC) which states that as long as the merits or the facts of the case have not already been decided by the Commissioner the applicant will always have the right to re-refer the very same case against the employer. This is very unfair as the applicant may have a change of heart and the employer will be summoned to answer to a case that he/she has long forgotten. What then can be done to avoid this state of affairs?
The court in the above mentioned case stated that in as much as the employee has the right to re-refer a withdrawn case it is open to an employer to prove to the Commissioner that such a case will be prejudicial, for example: witnesses have resigned, evidence is lost and it is costly for the employer to be appearing for a case in which the applicant has already shown that he is not interested in. Dealing with a case that has been withdrawn and subsequently re-referred is a complicated scenario. It is imperative that employers engage Consolidated Employers Organisation in order to ensure that their rights are not trampled upon. So, when an employee withdraws a case do not break out the champagne just yet. It is important to be circumspect and always weary that such a case may again rear its ugly head.
Article by: Shakti Jainarain
CEO Dispute Resolution Official – Durban