Withdrawing a withdrawal of a dispute and re-enrolling arbitration

June 1st, 2016
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By Yashin Bridgemohan

South African Municipal Workers Union and Others v Zenzeleni Cleaning and Transport Services CC (LC) (unreported case no JR852/13, 23-2-2015) (Molahlehi J).

Section 191(5) of the Labour Relations Act 66 of 1995 (LRA) provides the Commission for Conciliation, Mediation and Arbitration (CCMA) must arbitrate a dispute at the request of the employee party if it has been referred to conciliation and 30 days have passed or a certificate has been issued confirming the dispute has been unresolved.

Notwithstanding the above the LRA, as well as the CCMA Rules, does not make provision for the CCMA to hear an application to enrol an unfair dismissal dispute after such a dispute has been withdrawn by an applicant.

Background

The applicants in this case withdrew their referral to arbitration made to the CCMA (second respondent) after apparently being advised that the proper approach to follow in challenging their dismissal was contractual. This meant instituting action in the High Court.

After withdrawal the applicants then decided to return to the CCMA again and brought  an application to have the arbitration proceedings re-enrolled. Said application was rejected by the third respondent (the commissioner) on the ground that the CCMA did not possess jurisdiction to re-enrol a dispute that had been withdrawn before it could have been finalised.

The applicants then made an application to the Labour Court to review and set aside the jurisdictional ruling made by the third respondent.

Labour Court’s judgment

The court considered the case of Shibogde v Minister of Safety and Security and Others (LC) (unreported case no JR 3307/09, 11-7-2012) (Lagrange J) at para 26, where it was held that: ‘[T]he fact that a matter is withdrawn is not necessarily a bar to reinstituting proceedings. It seems that the prevailing view is that a claim is not determined by the withdrawal of the claim, but the withdrawal is equivalent to a grant of absolution from the instance. It therefore remains open for the applicant to reinstitute proceedings as the merits of the claim have not been adjudged.’

The court further noted the judgment of Shai AJ in Kgobokoe v Commission for Conciliation, Mediation and Arbitration and Others (2012) 33 ILJ 235 (LC) where the approach which was followed in the case Public Servants Association of South Africa obo Strydom v SARS [2007] JOL 20040 (LC), where it was held that a withdrawal of an action cannot be withdrawn was based on the doctrine of an election, was rejected. In dismissing that approach the court in Kgobokoe held that ‘a withdrawal of a matter may be withdrawn.’

In addition the court looked at the judgment of SAMWU and Others v Commission for Conciliation Mediation and Arbitration and Another (unreported case no J2448/13, 21-11-2013) (Steenkamp J) where the court confirmed the decision in Ncaphayi v Commission for Conciliation Mediation and Arbitration and Others (2011) 32 ILJ 402 (LC) and made a distinction between a withdrawal on the applicant’s own accord and where the withdrawal is an intrinsic part of a settlement agreement. The court, in further agreeing with the Ncaphayi case, held that a withdrawal of a dispute in labour matters is similiar to an order of absolution from the instance in civil procedure. The fact that the applicant withdraws a referral did not in terms of court bar the CCMA of the authority to enrol the arbitration on second referral.

The court held ‘the issue which the Commissioner ought to have concerned himself with to ensure that he arrives at a correct decision is whether there had been compliance with the provisions of Section 191(5) of the [LRA], in terms of which it is explicitly provided that the CCMA must arbitrate a dispute at the request of an employee, if the dispute has been referred to conciliation and or 30 days have lapsed or a certificate of outcome has been issued confirming that the dispute remains unresolved. It is common cause that the applicant acquired the right to refer the matter to arbitration once it was confirmed that the dispute remained unresolved’ (at para 13).

In addition the court found the commissioner was ‘incorrect in assuming that the withdrawal automatically meant that the applicants were no longer intended on pursuing their claim by virtue of the withdrawal’ (at para 14).

The court further held: ‘There is no automatic legal consequence that a withdrawal of a dispute means that the withdrawal cannot be withdrawn and the dispute be re-enrolled’ (at para 15).

Molahlehi J noted that: ‘Once the applicants’ application to have the matter re-enrolled was made it was incumbent on the Commissioner to enquire as to whether the withdrawal precluded the applicants from proceeding further with the dispute. It is only where the withdrawal is consequent to the compromise of the dispute, that it cannot be withdrawn’ (at para 15).

The court accordingly made an order that the commissioner’s ruling – that the CCMA did not have jurisdiction to hear the applicant’s dispute – was reviewed and set aside. In addition the court ordered that the CCMA re-enrol the arbitration proceedings and provide a date for same before a commissioner other than the third respondent.

Conclusion

This case is important as it confirms the view that a withdrawal of a referral to arbitration at the CCMA may in itself be withdrawn and arbitration proceedings may be re-enrolled, provided however that in the first instance, the withdrawal of the referral to arbitration was not made as a compromise to the dispute. In said circumstances where the CCMA refuses to re-enrol arbitration proceedings,  application may be made to the Labour Court for the review and setting aside of the CCMA’s decision.

Yashin Bridgemohan LLB (UKZN) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.