Section 191 of the Labour Relations Act 66 of 1995 (LRA), confers jurisdiction on the CCMA to arbitrate disputes regarding unfair dismissals. However, it often happens that employees refer disputes to the CCMA where there was no dismissal on the part of the employer, but rather an election by the employee to resign.

The first step in unfair dismissal disputes, is to determine whether the parties agree that there was a dismissal, irrespective of whether they deem the dismissal to be fair or not. Where the employer contends that there was no dismissal, a preliminary issue (point in Limine) is subsequently raised. The preliminary issue regarding the existence of the dismissal must be decided before the dispute can be arbitrated as it is necessary to determine whether the CCMA has the jurisdiction to arbitrate the unfair dismissal dispute.

In terms of Section 192(1) of the LRA, the employee bears the onus of proof in relation to the existence of the dismissal. The employee will have to lead evidence that he/she was indeed dismissed. The commissioner will then have to make a finding based on a balance of probabilities. Should the employee not be able to convince the commissioner that he/she was indeed dismissed, the commissioner must thus make a ruling that the CCMA does not have jurisdiction to arbitrate the dispute.   In SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Other (2008) 29 ILJ 2218 (LAC), the Labour Appeal Court held that:

The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then, the CCMA had no jurisdiction to entertain the dispute in terms of s 191 of the Act. The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction.”

Article by: Rushaan Lewis

CEO Dispute Resolution Official – East London