Dismissing matters is not an option

The Labour Relations Act 66 of 1995 regulates the relationship between an employer and employee.

The Labour Relations Act 66 of 1995 regulates the relationship between an employer and employee.

The act details the procedure on how to resolve the dispute about fairness of dismissal or unfair labour practice.

Section 191 of the act provides for that procedure in the event it arises. This section requires that a dispute be referred either to bargaining council or Commission for Conciliation, Mediation and Arbitration (CCMA), if no bargaining council exists.

It further prescribes 30 days on the period within which the dispute has to be referred to the bargaining council or the CCMA.

Once the CCMA is seized with a dispute, the act requires that it must attempt to resolve the dispute through conciliation. If the dispute after conciliation remains unresolved or 30 days has lapsed, the CCMA must issue the certificate of non-resolution.

The CCMA has established its own rules on how to resolve disputes referred to it. The relevant rules are rules 13 and 30. In terms of rule 13, a party to a dispute is required to "attend conciliation in person, irrespective of whether they are represented".

But rule 30 provides: "(1) if a party to the dispute fails to attend or be represented at any proceedings before the commission, and the party (a) had referred the dispute to the Commission, a commissioner may dismiss the matter by issuing a written ruling; or ."

CCMA has in the past dismissed matters where the party who referred the dispute failed to attend the conciliation.

This will not be the case anymore in the light of the recent Labour Appeal Court decision in the matter of Premier Gauteng and Others v L Ramabulane NO and Others. In this case the Court ruled that the validity of rule 30 in its current application is ultra vires. Simply put, the CCMA assumes powers to dismiss which the act does not provide for.

The court held that the CCMA is a creature of statute and therefore cannot exercise powers not given to it by the act.

The commissioner has no power to dismiss a dispute referred to CCMA because of failure to attend the hearing.

This, according to court, is tantamount to taking away the right of an employee to refer the matter to arbitration or adjudication by the court.

In the circumstances, the court further held that the employee who referred the dispute to CCMA and failed to attend the conciliation may still refer a dispute to arbitration or labour court. The court considers this to be consistent with the powers conferred by the act to CCMA.

This decision means that if a party does not attend conciliation or 30 days from the date the CCMA received the referrals has lapsed, the matter may be referred to arbitration or Labour Court, without doing anything after the dispute has been referred to conciliation.