When a dispute has been referred to conciliation only or to an objected con/arb process and the conciliation process has failed, the commissioner is duty bound to issue a certificate of non-resolution, confirming the dispute remains unresolved. With this document a party may refer the dispute to arbitration within 90 days by completing a 7.13 request for arbitration form.
There is a belief that only the employee is empowered to refer the dispute to arbitration, and therefore the employer remains in an unsure position, at least for the next 90 days, as to if the dispute will be referred. Until such time as the arbitration is finalised, or the 90 day period lapses, the dispute also remains pending, and the employer is unsure if he may appoint someone new in the old position.
In terms of rule 18 of the CCMA rules:
“1) A party may request the Commission to arbitrate a dispute by delivering a document in the form of Annexure LRA 7.13.
2) The referring party must –
…” (my emphasis)
It is clear from the above quoted rule that no mention is made that only an employee or Applicant may refer the dispute to arbitration and therefore the employer may also do so as a party to the dispute.
Why would an employer however want to refer a dispute to arbitration, as surely there is a chance it will never be referred and will simply lapse?
The above becomes important in disputes relating to the dismissal of employees who receive accommodation from the employer as part of their benefits, i.e farm workers.
In situations where occupation in an employer provided accommodation is dependant on employment, termination of such employment makes the continued occupation unlawful. “Unlawful occupation” is one element that needs to be satisfied in order to be successful with an application for eviction in terms of the Prevention of Illegal Eviction Act (PIE) in civil Court. As long as a dispute is therefore pending at the CCMA or Bargaining Council, no determination has been made as to if the dismissal is “fair” and therefore if a termination of employment has taken place, as there may be an award for re-instatement. Therefore the occupation cannot be deemed to be unlawful as long as the dispute is pending.
What has now developed is that employees would refer disputes to the CCMA as this delays the PIE eviction process and entitles them to retain occupation of the premises. This is especially troubling in instances where a farm worker objects against the con/arb process and then does not attend. In these circumstances the certificate of non-resolution would be issued and the dispute would lie dormant until such time as it is referred to arbitration, possibly for another 90 days. All the while the employee continues to occupy the premises and the employer incurs municipals costs such as water and electricity.
In terms of the CCMA rules as cited above however, “a party” may request arbitration by completing the 7.13 form. This would implicate that the employer, who is also a party to the dispute, can use this mechanism to speed up the dispute resolution process and immediately refer the dispute to arbitration should con/arb be objected to and the conciliation fail. This would also mean that any misuse of the CCMA process to prolong the PIE eviction process can be avoided.
With any assistance to the above mentioned, please contact your nearest CEO branch.
Article by: Casper Geustyn
CEO Dispute Resolution Official – Cape Town