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Other Possible Issues

Condonation for failure to comply with the Rules and form

Applicants need to apply for condonation if any referral or applications are delivered outside of the timeframes outlined by the LRA or the Rules of the CDR. The LRA states that if a person has been dismissed, and wishes to refer the dispute to the CDR, he must do so within 30 days of a dismissal. If an applicant has been dismissed and he appeals the dismissal as per the company's appeal procedure, the 30 days only starts on the date that the dismissal is confirmed on appeal. If the applicant is alleging an unfair labour practice, the dispute must be referred within 90 days from the alleged incident.

If an applicant does not meet these timeframes, then he needs to apply for condonation. The condonation application form is attached to the referral form. Both forms must be completed and sent to the CDR. The condonation application may be heard on paper where sufficient information is received in the documents submitted by the parties. If the case warrants it, the parties may be called in for a hearing to argue their cases in front of a council commissioner. This is necessary where insufficient documentation is received and/or the case is complex.

A preliminary ("In-Limine") hearing will be held for the parties to state their case about the late referral. The issues that the MEIBC commissioner will consider when hearing your application: -

  1. The degree of lateness (ie how late is the application)
  2. The reasons for referring the dispute late and degree of fault
  3. The referring party's prospects of success in the case
  4. Any prejudice to the other party
  5. Any other relevant factors.

If the application for condonation is successful, the case will immediately be set down for conciliation or con-arb. If the application for condonation is unsuccessful, then the case will be dismissed and closed on the system. The parties may take the decision of the MEIBC commissioner on review to the Labour Court.

What is meant by jurisdiction?

Jurisdiction means the power or competence of the CDR to hear and determine an issue between parties i.e. to conciliate and arbitrate disputes between parties. If the CDR has the jurisdiction to deal with a dispute, it means that the LRA empowers the MEIBC to deal with it. Therefore, if a matter is out of the CDR's jurisdiction, it means that the LRA does not allow the MEIBC to deal with it.

The right to legal representation

As a general rule, an employee party may not be represented by a fellow employee, unless such fellow employee is a member, official or office bearer of that employee party’s registered trade union. Similarly, relatives or friends of a party may not represent such party unless they qualify on a basis permitted by the rules. It should be noted that labour disputes differ from cases going to the civil courts. In cases going to the CDR relating to a dismissal for conduct or incapacity, the employer party can only be represented by an employer organisation or federation and the employee party can only be represented by a union representative. The MEIBC conciliator may in certain circumstances allow the parties to be represented by lawyers if they were members of those organisations at the time the dispute arose. The parties cannot join a union or employer organisation after the dispute arose so that they can be represented. It should be noted that "consultants" are not allowed in processes.

How to apply to refer a dismissal dispute to the Labour Court

Parties to a dispute, which has not been settled in conciliation and will proceed on to arbitration, may apply to the CDR for the matter to rather go to the Labour Court in terms of section 191(6) of the LRA within 90 days of a certificate that the dispute has not been resolved. Parties usually take this route if the matter is of a high profile or a legal technical point is being considered and case law is contradictory on the matter. In order to make this application, a letter and a motivation must be sent to the CDR at least 14 days after the conciliation certificate has been issued. The application must be served on the other party. The other party receiving the application has 7 days to respond. The Secretary of the MEIBC, or a delegated person, will determine the application. The CDR will notify the parties within 14 days of receiving submissions from the parties in terms of section 191(8) of the LRA.

How to have a subpoena issued and served

A subpoena is an order obliging a person to attend arbitration as a witness or obliging someone to submit documents to an arbitrator. A party wanting to subpoena witnesses or documents must complete a subpoena request form (LRA Form 7.16) and attach a motivation. This form needs to be submitted at least 14 days before the arbitration hearing. A witness fee is payable, but a request may be made for the fee to be waived and that the MEIBC pays it.

The CDR can refuse to issue a subpoena if: -

  1. The evidence of the person does not appear to be necessary
  2. No reasonable time period is given
  3. The CDR is not satisfied that the party has made arrangement to pay the witness fees and made transport arrangements

A subpoena must be served by the person who requested the issuing of the subpoena or by the Sheriff at least 7 days prior to the scheduled date of the arbitration. In other words, the person subpoenaed will be given at least seven days’ notice of the hearing. The MEIBC commissioner may order that no witness fee be paid to the witness.

Review of arbitration awards

CCMA and bargaining council awards are subject to review by the Labour Court. On review the overriding consideration is whether the decision reached by the arbitrating commissioner is one that a reasonable decision-maker could not reach. In terms of section 145 of the LRA, a party may apply to the Labour Court on the basis of an alleged defect with a commissioner's rulings or awards.

The party who alleges such a defect must apply to the Labour Court to set aside the award within six weeks of the award being served. In terms of the Act defect means:

  • that the commissioner committed misconduct in relation to the duties of the commissioner as arbitrator
  • that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings
  • that the commissioner exceeded his powers; and
  • that the award was improperly obtained.

It is important to note that the review is not an appeal, and therefore it is not related to the merits of the matter but to the commissioner's conduct. CCMA and bargaining council awards are not subject to appeal with two exceptions i.e. section 24(7) of the LRA and section 10(8) of EEA.