The Labour Appeal Court decided

Prior to August 2021, an arbitrating commissioner had the authority as per section 138(5)(a) of the Labour Relations Act, to dismiss matters referred to it if the referring party failed to attend arbitration. In Solomons v Phokelo NO, the CCMA and Food Lovers Market Kempton Park (JR99/2021), it was held that such dismissal is an administrative act and should not be dealt with as a ruling.

2023/05

By Jan du Toit, director at Labour Guide.

Justice Moshoana found that a commissioner may not dismiss such a matter, but instead, may make an administrative decision to remove the matter from the roll.  In the circumstances, it was held that an applicant may request that the matter be re-enrolled, and rescission in terms of section 144 of the Labour Relations Act would not apply.

The aforementioned resulted in great frustration to employers that showed up for arbitrations, only to find that the ex-employee is not in attendance. As per the Solomons judgement, the arbitrating commissioner was under such circumstances only allowed to remove the matter from the roll. A simple soppy short letter to the Commission, requesting re-enrollment based on some or other excuse for not attending arbitration proceedings, normally resulted in re-enrollment. Such a request could not be opposed by the employer due to it not being an application as contemplated in terms of rule 30 of the CCMA.

As a result of the Solomons judgement, the CCMA issued a directive on 5 October 2021 and recently amended its rules. The amended rules 30 and 30(2), as well as the newly introduced rule 31C, became effective on 24 April 2023 and prescribes specific procedures to be followed in requesting and opposing re-enrolment.

On 18 May 2023 in Mohube v CCMA & Others (JA18/2022), the LAC rejected the interpretation of section 138(5)(a) per Solomons v Food Lovers Market, Kempton Park. It was held that “instead of reviewing and setting aside the refusal by the commissioner to rescind the ruling, the Labour Court decided to interpret the word “dismiss” as set out in section 138(5) to “mean struck off the roll”. All this does is create legal confusion and is neither helpful nor correct.

To interpret the word “dismissal” in section 138(5)(a) to mean “struck off from the roll” is to give it a meaning that cannot ordinarily be ascribed to that word and to attribute to the word a value or a result that would serve a purpose other than what it is supposed to convey, this is not interpretation.”

Subsequently the CCMA issued a directive on 27 May 2023, which became effective immediately. As per the directive: 

• The CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 is repealed with immediate effect.
• Commissioners have the power to dismiss matters in terms of section 138(5)(a) of the LRA. However, as per the LAC, commissioners are directed to utilise this power as a last resort.
• In cases where a dismissal has been ruled, parties have a right to apply to have the ruling rescinded in terms of section 144 of the LRA read with CCMA Rule 30.
• A ruling issued in terms of Rule 30 is a ruling contemplated in terms of section 144 of the LRA.
• The CCMA will issue Guidelines within seven (7) working days of the date of this Directive on what factors may be considered when exercising the power to dismiss and on how to deal with matters that are pending.

 Readers are invited to attend our upcoming 2023 Amended CCMA Rules presentation.

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 This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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