Name of presenter: Craig Bosch

Title of Presentation: Jurisdictional issues in the CCMA

SASLAW SEMINAR 24 APRIL 2012

Jurisdiction to conciliate

There must be a ‘dispute’ which may be referred to the CCMA for conciliation• What if the dispute has allegedly been settled?

There must be no bargaining council with jurisdiction over the parties to the dispute, unless the CCMA has assumed jurisdiction in terms of s147

There must have been proper service on the other party/ies and the referral from must have been properly completed

Jurisdiction to conciliate

Must the applicant be an ‘employee’? Yes: Seeff Residential Properties v Mbhele NO &

others (2006) 27 ILJ 1940 (LC); EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & another (2008) 29 ILJ 2588 (LC); Virgin Active SA (Pty) Ltd v Mathole NO & others(2002) 23 ILJ 948 (LC) and Sanlam Life Insurance Ltd v Commission for Conciliation, Mediation & Arbitration & others (2009) 30 ILJ 2903 (LAC)

No: Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) - this is not a ‘true jurisdictional issue’

Jurisdiction to conciliate

If something is a true jurisdictional issue when must it be determined? Bombardier Transportation (Pty) Ltd v Mtiya NO &

others (2010) 31 ILJ 2065 (LC) – commissioners have an election to defer decisions on certain jurisdictional points to arbitration

Difficulties with this Is the point practically moot in any event?

What is NOT required: proof that an applicant was ‘dismissed’ or has a claim that in fact relates to a ‘promotion’ or ‘demotion’ or ‘benefit’

Jurisdiction to arbitrate A dispute that remains unresolved. Here it becomes

relevant whether or not the matter has been settled. And commissioners have the power to determine that if it is contested.

The employee must have been ‘dismissed’ (see SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others; SA Rugby (Pty) Ltd v SA Rugby Players Association (2008) 29 ILJ 2218 (LAC); University of Pretoria v CCMA & others (2012) 33 ILJ 183 (LAC) or have a claim that falls within the parameters of the ULP definition in s186(2) (see IMATU obo Verster v Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC))

But should this be so?: Asara Wine Estate & Hotel (Pty) Ltd v Van Rooyen & others (2012) 33 ILJ 363 (LC)

Jurisdiction to arbitrate

The dispute must have been referred for arbitration or a late referral must have been condoned

The dispute must have been referred for conciliation What is the significance of any certificate that has been

issued? Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others

(2000) 21 ILJ 2382 (LAC) read with EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & another (2008) 29 ILJ 2588 (LC); IMATU obo Verster v Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC); Velinov v University of Kwazulu-Natal & others (2006) 27 ILJ 177 (LC)

But see Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC)

Dispute must have been referred for arbitration (continued) Cases other than those relating to a lack of

condonation at conciliation: Avgold - Target Division v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 924 (LC); Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31 ILJ 2065 (LC) and Parliament of RSA v NEHAWU obo members & others (2011) 32 ILJ 2534 (LC)

CCMA Guidelines on Misconduct Arbitrations item 24

Jurisdiction to arbitrate

The review of decisions on jurisdiction

SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others; SA Rugby (Pty) Ltd v SA Rugby Players Association (2008) 29 ILJ 2218 (LAC): the test is correctness

Is that correct? Consider: Carephone (Pty) Ltd v Marcus NO &

others (1998) 19 ILJ 1425 (LAC) and Shoprite Checkers (Pty) Ltd v CCMA & others (2009) 30 ILJ 829 (SCA)