For a dispute to arise, there are always two parties involved with different views on how the matter should be resolved. A tribunal such as the Commission for Conciliation and Mediation and Arbitration (“CCMA”) is mandated to attend such matters for purposes of coming to a resolution. This article seeks to answer what happens if a matter is referred to the CCMA and, for some reason, both or either of the parties is not present at the CCMA. The next question would be, what relief is given to the party who is present at the CCMA.
Section 138(5)(b)(i) of the Labour Relations Act 66 of 1995 (“LRA”) states that if a non-referring party (generally the employer) is not present at the CCMA, the Commissioner may continue with the arbitration process in the absence of the employer. In practice, the Commissioner must satisfy himself that the employer was notified of the date, time and venue of arbitration and thereafter continue with a default award. Should the employer have a good reason for the non-attendance of the arbitration, the employer may apply to rescind the default award.
Section 138(5)(a) of the LRA states that if a party to the dispute fails to appear in person or to be represented at the arbitration proceedings and that party had referred the dispute (generally the employee), the Commissioner may dismiss the matter in the sense that the case will be stuck from the CCMA case roll.
Previously, the referring party had an option to rescind the dismissal ruling after showing good cause for their absence to argue that the case should be rescheduled.
However, in the recent judgement of Solomons v Phokela N O (JR99/2021) , ZALCJHB 192 delivered on 2 August 2021, the option to rescind a dismissal ruling was done away with.
In summary, the parties had agreed to postpone a scheduled arbitration hearing at the CCMA and consequently did not attend on the day. The Commissioner then refused the postponement on the basis that the postponement agreement had only been signed by one party and dismissed the dispute. Solomons sought a rescission of the ruling, and when that was denied, he applied to the Labour Court for relief.
The court held that the ruling of a dismissal in terms of section 138(5)(a) is not a ruling itself because the ‘facts of the matter’ were not heard to warrant a Commissioner to dismiss the case. Therefore, rescission is not a remedy that rendered it a nullity in law and not capable of being reviewed. In these circumstances, should the employee not be present at the arbitration, the CCMA will remove the matter from the roll. The court indicated that the usage of the phrase “dismiss the matter” in section 138(5)(a) is unfortunate.
In light of the above, the Solomons case brought change within the CCMA, whereby a directive dated 15 October 2021 was issued indicating that cases will not be dismissed in the true sense of the word but rather struck from the roll due to non-attendance by the referring party.
The Directive highlighted the following important principles:
- If the referring party fails to attend the arbitration, including the arbitration part of con-arb, the Commissioner appointed to arbitrate must attempt to establish the reason for non-attendance.
- If there appears to be a good reason for the absence, the Commissioner must record the reason on the file and direct that the matter must be rescheduled for arbitration.
- If the absence is, on the face of it, wilful or unexplained, or the Commissioner does not accept the explanation, the Commissioner may exercise discretion in terms of section 138(5)(a) to dismiss the matter, and the matter will be removed from the roll.
- The Commissioner must complete the prescribed form that states that the matter is removed from the roll and that the referring party that was absent may request that the matter be re-enrolled according to the prescribed procedure.
- The CCMA must inform the parties that the matter is removed from the roll by sending all parties a copy of the decision.
- The matter will be recorded as “abandoned” on the system and closed. This enables the case to be re-opened if the request for re-enrolment is granted and the matter is rescheduled for arbitration.
In summary, matters which are referred to the CCMA and the employee is not present, the CCMA is required to indicate that the matter is removed from the roll after the Commissioner satisfies themselves that the referring party has good reason for the non-attendance. When the referring party is not present at the hearing, the CCMA will remove the matter from the roll as stated in the Solomons case. Should the employee wish to continue with the matter, which was removed from the roll, they can re-enrol the matter for arbitration if the referring party can provide acceptable reasons for their non-attendance previously. How this re-enrolment affects the employers, and the never-ending backlogs of the CCMA cases are yet to be established.
The Solomons case introduced what has always been applied in the Magistrate and High Courts to the CCMA’s practice and procedure. When a matter is removed from the roll for whatever reason, there may be, the referring party will have the opportunity to re-enrol the matter. Should employers require assistance and a way forward on the above, please do not hesitate to contact Consolidated Employers Organisation (CEO).
Article by: Tshepang Makhetha
Dispute Resolution Official – Pretoria