Section 73A of the Basic Conditions of Employment Act (“BCEA”) confers jurisdiction on the CCMA to conciliate and arbitrate disputes in which employees earning below the prescribed threshold may claim monies owing to them in terms of the National Minimum Wage Act, the BCEA, a collective agreement, a sectoral determination or contract of employment.
There are limitations imposed regarding which employees may institute a claim, as well as what they may claim.
It is important to note that only employees earning below the prescribed threshold of R205 433,30 per annum may refer a section 73A dispute for monies owing to them at the CCMA. Any employee who earns above the threshold will have to institute a claim in the Labour Court, High Court, Magistrates Court or Small Claims Court. The commissioner in the case of Laverne Clouts & 1 Other vs Theta Mining (NC1849-20) found that the earnings of both employees were below the threshold and the dispute is therefore properly before the CCMA.
Furthermore, an employee may only claim monies which arise from the National Minimum Wage Act, the Basic Conditions of Employment Act, a collective agreement, sectoral determination or a contract of employment. This was confirmed in the case of Menelisi Shamase vs The Market Restaurant (KNDB9170-20) where the employee claimed an ex-gratia payment of money which was promised to him verbally. The commissioner found that the CCMA lacked jurisdiction to deal with a claim which arose from a verbal agreement.
In some instances, legal representation is not an automatic right afforded to parties at CCMA. Rule 25 (1)(c) of the CCMA rules states that if the dispute being arbitrated is referred in terms of section 73A of the BCEA, a party is not entitled to be represented by a legal practitioner or a candidate attorney. Should any party wish to be assisted by a legal representative, he/she would have to seek consent from the commissioner and opposing party or bring a formal application seeking the Commissioners permission to have legal representation granted.
Can an S73A con/arb be objected to:
No, it cannot. In terms of section 73A (5), the CCMA must commence the arbitration of the dispute immediately after certifying that the dispute remains unresolved. Therefore, we would advise that it is in the best interests of our members that they attend section 73A processes in person with the appointed CEO official.
Who bears the onus of proof:
In the case of NUMSA obo Tshenyego, P vs Sothembela Security Services (NC1366-29), the employee referred a dispute claiming unpaid salary. However, the commissioner found that “while the overall onus never shifts from the employer, the need to present evidence may rest on different parties during the course of the proceedings” he further confirmed that when raising a particular defence, an evidentiary burden falls on the employee to establish that his/her version is likely.
The commissioner then went on to state that the employees’ case in this matter “lacked evidential foundation and consisted of argument only” and ultimately ruled that the employee failed to prove his claim.
While the employee might be required to prove his/her claim for monies owing, it is still important to remember that the overall onus of proof still rests on the employer who should be well prepared to disprove any allegation made by the employee.
Article by: Cathryn Gungadeen
Dispute Resolution Official – Durban