The Commission for Conciliation, Mediation, and Arbitration (CCMA) has recently issued directives and amendments to the CCMA Rules relating to dismissing cases due to non-appearance of an Applicant. These changes were brought on by a recent LAC case that set the record straight on the proper interpretation and application of section 138(5)(a) of the Labour Relations Act.
Prior to the latest developments, arbitrating commissioners were empowered to dismiss cases if the referring party failed to attend the arbitration hearing. However, the case of Solomons v Phokelo N.O., the CCMA and Food Lovers Market Kempton Park (JR99/2021), challenged this practice.
Justice Moshoana ruled that instead of dismissing a case due to the non-appearance of an Applicant, that a commissioner should make an administrative decision to remove the matter from the roll. Consequently, the applicant has the right to request that the case be re-enrolled, and the provisions of section 144 of the Labour Relations Act regarding rescission do not apply.
This change raised frustration for employers who diligently attended arbitration hearings only to find that the Applicant (former -employee) failed to appear. Previously, a simple request to the CCMA for re-enrolment, would typically lead to re-enrolment of the matter. There existed no process for the Employer to have their say or to object to the re-enrolment. This situation was not tenable as it unnecessarily procrastinated the dispute resolution process.
To address this issue, the CCMA issued a directive on 5 October 2021, and subsequently amended its rules. The amended Rules 30 and 30(2), along with the introduction of Rule 31C, became effective on the 24th of April 2023. These rules established specific procedures for requesting and opposing re-enrolment.
In a more recent twist, on 18 May 2023, in the case of Mohube v CCMA & Others (JA18/2022), the Labour Appeal Court (LAC) rejected the interpretation set out in Solomons. The LAC stated that interpreting the word “dismiss” in section 138(5)(a) as “struck off from the roll” creates legal confusion and is incorrect. The court emphasized that the term “dismissal” should not be given an unconventional meaning or attribute a value that deviates from its intended purpose.
As a result, the CCMA issued a directive on 27 May 2023, effective immediately as follows:
· Commissioners have the power to dismiss matters under section 138(5)(a) of the Labour Relations Act. However, this power should be exercised as a last resort.
· Parties have the right to apply for the rescission of a dismissal ruling under section 144 of the Labour Relations Act, read in conjunction with CCMA Rule 30.
· A ruling issued in accordance with Rule 30 is considered a ruling as per section 144 of the Labour Relations Act.
· The CCMA will issue guidelines within seven working days of the directive’s date, outlining the factors that should be considered when exercising the power to dismiss and how to handle pending matters. At date of writing, the CCMA had not yet issued such guidelines.
These recent developments highlight the dynamic nature of labour law and the need for ongoing clarification and adaptation of procedures. Employers and employees alike should stay informed about these changes and consult with legal professionals when navigating inter-locutory applications and arbitration proceedings.