Often it occurs in practice that an employee may refer more than one matter to the CCMA against an employer. In addition to this, often individual employees of the same employer may refer separate matters based on the same cause of action against an employer to the CCMA at the same time. As can be expected, this creates a situation whereby both the CCMA and the respective employer are having to deal with matters that could easily all have been dealt with at the same time. Consequently, and due to the CCMA being a forum which seeks to resolve issues as expeditiously and as cost-effectively as possible, the CCMA Rules allow for concurrent CCMA matters to be consolidated into one matter. The manner and rationale for this will be discussed below.
The CCMA Rule which gives effect to consolidation of matters, is Rule 28. This Rule enables the CCMA or Commissioner to consolidate more than one dispute into a single dispute before the CCMA. Rule 28, when read with Section 135(3A) of the Labour Relations Act (LRA) provides that;
- (3A) If a single Commissioner has been appointed in terms of Sub-section (1), in respect of more than one dispute involving the same parties, the Commissioner may consolidate the conciliation proceedings so that the disputes concerned may be dealt with in the same proceedings.
The provisions of (3A) only apply to conciliation proceedings, however, the CCMA has relied on Section 138(1) of the LRA to justify consolidation in Arbitration proceedings based on principles of expedience. The application of (3A) only applies to instances where the parties in separate proceedings are the same, whereas the intention of Rule 28 is to consolidate more than one dispute as long as the nature of the disputes relates to similar or substantially similar questions of law or fact.
In this regard, Rule 28 also provides as to when the CCMA or Commissioner may consolidate disputes, these provisions include;
1. The Commission or a commissioner may, of its own accord, by consent of the parties or on application, and on notice to the parties concerned, consolidate more than one dispute so that the disputes may be dealt with in the same proceedings.
2. The Commission or a commissioner may order consolidation of separate disputes of right, where-
a. the relief sought in each of the separate dispute to be consolidated, depends on the determination of similar or substantially the same questions of law and fact;
b. there will be no substantial prejudice on the party or parties sought to be joined through a consolidation order;
c. the balance of convenience favours such consolidation; and
d. the CCMA has jurisdiction on all disputes sought to be consolidated.
The Application of Rule 28 applies where the disputes have substantially similar questions of law or facts, this is weighted against the consideration of convenience and expedience. In Piner v SA Breweries LTD (220) 23 ILJ 1446 LC, the Labour Court declined to order consolidation in that matter as there was no relationship between the parties against whom the application was brought, further the issues in dispute were not substantially the same questions of law and fact. Further to this point, in Nel v Silicon Smelters (EDMS) BPK 1981 (4) SA 792 (A) the Court held that consolidation is a form of joinder, and joinder is a form of consolidation, and the purpose is to allow disputes that are essentially the same to be decided together and avoid multiplicity of actions.
The consolidation of disputes may be brought by the party or parties to a dispute wanting to Consolidate the dispute by way of Application for Consolidation, parties must, however, bring such application in accordance with provisions of Rule 31.
Therefore, if an employer notices from the outset that various employees have referred separate matters or there is a possibility of dealing with various concurrent matters at once, thought should definitely be given to having the matters consolidated so as to save on time and possible expenses
Article by: Wesley Lazarus
Dispute Resolution Official – George