A commissioner has power to dismiss a matter when a referring party fails to appear

October 1st, 2023
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Mohube v Commission for Conciliation, Mediation and Arbitration and Others (LC) (unreported case no JA18/2022, 18-5-2023) (Coppin JA)

Mr Mohube (the employee) worked as a company secretary of the Passenger Rail Agency of South Africa (the employer). The employee was allegedly involved in financial/tender irregularities and fraud. He was subsequently charged, faced a disciplinary hearing, and found guilty. On 26 April 2019, he was sanctioned to a dismissal. Aggrieved by the outcome he referred an unfair dismissal dispute to the Commission of Conciliation Mediation and Arbitration (CCMA).

CCMA

On the 12 June 2019, the matter was set down for a conciliation/arbitration (con-arb). Present was the commissioner together with the employee. The employer representative was absent. The commissioner issued a non-resolution certificate and directed the matter to be set down for arbitration.

At the arbitration sitting held by Commissioner Botha, the employee did not attend. Commissioner Botha issued a dismissal ruling in terms of s 138(5)(a) of the Labour Relations Act 66 of 1995 (LRA).

The employee applied for recission under s 144 of the LRA claiming he did not receive the notice of set down of which the employer opposed. Commissioner Byrne refused recission and said Commissioner Botha’s dismissal ruling stood. Unhappy, the employee launched a review application in the Labour Court (LC).

Labour Court

The employee’s application sought to review and set aside Commissioner Bryne’s recission ruling. In the application he also sought a review of Commissioner Botha’s dismissal ruling. This court found that strange as that was the precise ruling he wanted to rescind.

This court dismissed the employee’s review application of Commissioner Byrne’s recission ruling.

Labour Appeal Court

This court set out clearly that commissioners have discretion to dismiss a matter in terms of s 138(5)(a) of the LRA due to non-attendance of the referring party. However, a commissioner must apply their mind and issue a dismissal ruling as a last resort.

This court held that a dismissal ruling will not be regarded as a violation of the LRA or the Constitution as the employee would have been afforded an opportunity to appear but failed to do so. In the same token the employee will still have a remedy available namely, to apply for recission in terms of s 144 of the LRA.

Directive by the CCMA

This case introduced changes in the way s 138(5)(a) of the LRA and r 30 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration should be applied. This led to the Director of the CCMA repealing the Directive on the Determination of Dismissals under s 138(5)(a) of the LRA, 2021 and issuing a new directive with immediate effect. This directive (Directive on s 138(5)(a) of the LRA 66 of 1995, read with CCMA rule 30 on the power of a commissioner to dismiss a matter for non-attendance at arbitration) encompasses guidelines and/or factors that a commissioner may take into account when using their discretion to dismiss a matter.

The directive is set out as follows:

‘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].

That 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.

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 in terms of the CCMA Directive on the Determination of Dismissals under section 138(5)(a) of the LRA of 5 October 2021 and Rules 30(1)(a) and (b)’ (CCMA ‘Directive on section 138(5)(a) of the Labour Relations Act 66 of 1995, read with CCMA Rule 30 on the power of a commissioner to dismiss a matter for non-attendance at arbitration’ (www.ccma.org.za, accessed 2-9-2023)).

Phumzile Penelope Ziqubu LLB (UKZN) is a legal official in Johannesburg. She writes in her own capacity.

This article was first published in De Rebus in 2023 (Oct) DR 39.

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