Transcript SASLAW seminar on jurisdictional issues

SASLAW SEMINAR
24 APRIL 2012
Name of presenter: Craig Bosch
Title of Presentation: Jurisdictional issues in the CCMA
Jurisdiction to conciliate
There must be a ‘dispute’ which may be referred to the
CCMA for conciliation
• What if the dispute has allegedly been settled?
There must be no bargaining council with jurisdiction over
the parties to the dispute, unless the CCMA has assumed
jurisdiction in terms of s147
There must have been proper service on the other party/ies
and the referral from must have been properly completed
Jurisdiction to conciliate
 Must the applicant be an ‘employee’?
 Yes: Seeff Residential Properties v Mbhele NO & others (2006) 27
ILJ 1940 (LC); EOH Abantu (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & another (2008) 29 ILJ
2588 (LC); Virgin Active SA (Pty) Ltd v Mathole NO &
others(2002) 23 ILJ 948 (LC) and Sanlam Life Insurance Ltd v
Commission for Conciliation, Mediation & Arbitration & others
(2009) 30 ILJ 2903 (LAC)
 No: Bombardier Transportation (Pty) Ltd v Mtiya NO & others
(2010) 31 ILJ 2065 (LC) - this is not a ‘true jurisdictional issue’
Jurisdiction to conciliate
 If something is a true jurisdictional issue when must it be
determined?
 Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010)
31 ILJ 2065 (LC) – commissioners have an election to defer
decisions on certain jurisdictional points to arbitration
 Difficulties with this
 Is the point practically moot in any event?
 What is NOT required: proof that an applicant was
‘dismissed’ or has a claim that in fact relates to a ‘promotion’
or ‘demotion’ or ‘benefit’
Jurisdiction to arbitrate
 A dispute that remains unresolved. Here it becomes
relevant whether or not the matter has been settled. And
commissioners have the power to determine that if it is
contested.
 The employee must have been ‘dismissed’ (see SA Rugby
Players Association & others v SA Rugby (Pty) Ltd & others; SA
Rugby (Pty) Ltd v SA Rugby Players Association (2008) 29 ILJ
2218 (LAC); University of Pretoria v CCMA & others (2012) 33
ILJ 183 (LAC) or have a claim that falls within the parameters
of the ULP definition in s186(2) (see IMATU obo Verster v
Umhlathuze Municipality & others (2011) 32 ILJ 2144 (LC))
 But should this be so?: Asara Wine Estate & Hotel (Pty) Ltd v
Van Rooyen & others (2012) 33 ILJ 363 (LC)
Jurisdiction to arbitrate
 The dispute must have been referred for arbitration or a late
referral must have been condoned
 The dispute must have been referred for conciliation
 What is the significance of any certificate that has been issued?
 Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ
2382 (LAC) read with EOH Abantu (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & another (2008) 29 ILJ 2588
(LC); IMATU obo Verster v Umhlathuze Municipality & others (2011)
32 ILJ 2144 (LC); Velinov v University of Kwazulu-Natal & others
(2006) 27 ILJ 177 (LC)
 But see Bombardier Transportation (Pty) Ltd v Mtiya NO & others
(2010) 31 ILJ 2065 (LC)
Jurisdiction to arbitrate
 Dispute must have been referred for arbitration (continued)
 Cases other than those relating to a lack of condonation at
conciliation: Avgold - Target Division v Commission for Conciliation,
Mediation & Arbitration & others (2010) 31 ILJ 924 (LC);
Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010) 31
ILJ 2065 (LC) and Parliament of RSA v NEHAWU obo members &
others (2011) 32 ILJ 2534 (LC)
 CCMA Guidelines on Misconduct Arbitrations item 24
The review of decisions on
jurisdiction
 SA Rugby Players Association & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SA Rugby Players Association
(2008) 29 ILJ 2218 (LAC): the test is correctness
 Is that correct?
 Consider: Carephone (Pty) Ltd v Marcus NO & others (1998) 19
ILJ 1425 (LAC) and Shoprite Checkers (Pty) Ltd v CCMA &
others (2009) 30 ILJ 829 (SCA)