In proceedings before the CCMA and Bargaining Councils, the concept of jurisdiction refers to the authority of the CCMA and councils to conciliate and arbitrate disputes between the parties.
In terms of Section 135 of the Labour Relations Act, when conciliation has failed, the commissioner must issue a certificate of outcome stating that the dispute remains unresolved. Does this certificate of outcome automatically confer jurisdiction on the CCMA or council to arbitrate the dispute?
There have been a number of cases concerning the status of the certificate of outcome. The matter of Fidelity Guards Holdings v Epstein 2000 12 BLLR 274 (LAC) led to uncertainty regarding the effect of a certificate of outcome. In this matter, it was held that once a certificate of outcome has been issued, any jurisdictional defect that may have existed is cured. In line with this judgment, the CCMA and councils would have jurisdiction to arbitrate a dispute which has been referred outside of the normal timeframes simply because a certificate of outcome was issued.
It could happen, however, that parties only realise after conciliation that a dispute contains a jurisdictional defect.
In the matter of Bombardier Transportation (Pty) Ltd v Mtiya 2010 8 BLLR 840 LC, it was determined that jurisdictional issues may be raised later, at the arbitration stage. It was held that “a certificate of outcome is no more than a document issued by a commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising its statutory powers. In short, a certificate has nothing to do with jurisdiction. If a party wishes to challenge the CCMA’s jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA Commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact, or it does not.”
This approach has been followed by a number of Labour Court cases since. A jurisdictional point may therefore be raised at the arbitration.
Article by: Ruaan Heunis
Dispute Resolution Official – East London