Steps to be taken by a commissioner when exercising his/her discretion to dismiss a matter at arbitration if the referring party fails to attend the arbitration.

Written By of Cowan-Harper-Madikizela Attorneys

Section 138(5)(a) of the Labour Relations Act provides as follows:

“If a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party-

  1. had referred the dispute to the Commission, the commissioner may dismiss the matter;”

The CCMA has issued a directive, which came into effect on 15 October 2021, that directs Commissioners on the steps that must be taken when exercising their discretion to dismiss matters at arbitration and thereafter to re-enrol matters after they have been dismissed in terms of that section.

The directive has been issued following a decision of the Labour Court in the case of Solomons v Food Lovers Market Kempton Park (JR 99 2021) which was handed down on 2 August 2021. The Court held in that case that the phrase “dismiss” in terms of section 138(5)(a) is unfortunate because it is not ordinarily appropriate for matters to be dismissed without first determining the merits of the dispute. The Court interpreted that section to mean rather that the matter may be “removed from the roll”  or “withdrawn”.

Briefly, Solomons who was a former employee of Food Lovers Market referred an unfair dismissal dispute to the CCMA which was thereafter set down for arbitration.  Two days prior to the arbitration Food Lovers Market brought an application for a postponement due to the fact that one of its witnesses had tested positive for Covid-19.  Solomon consented to the request for a postponement and the postponement agreement was signed by one party and sent to the CCMA.  On the day of the arbitration, neither of the parties attended the CCMA and the CCMA refused the postponement. The commissioner proceeded to exercise her powers in terms of section 138(5)(a) of the LRA and dismissed the dispute referred by Solomons.  After unsuccessfully attempting to rescind the CCMA’s ruling, Solomons brought an application to the Labour Court to review and set aside the rescission ruling.

Ultimately the Court dismissed the application for review of the rescission ruling on the grounds that the Commissioner had not issued a ruling as such when dismissing the matter and therefore a rescission application was not necessary.  However, the Court found that the Commissioner had been required to exercise discretion in terms of section 138(5)(a) but she had failed to consider the application for postponement properly and had made an irrational decision.

The CCMA Directive now clarifies how commissioners must exercise their discretion when dismissing disputes under section 138(5)(a). The Directive provides as follows:

If a referring party fails to attend an arbitration (including the arbitration part of con-arb) the commissioner must establish the reason for non-attendance.

If there appears to be a good reason for the absence, the commissioner must record the reason on the file and direct the matter to be rescheduled for arbitration.

If, on the face of it, the absence is wilful or unexplained, or the commissioner does not accept the explanation, the commissioner may exercise discretion to dismiss the matter and the matter will be removed from the roll.  The Commissioner must complete the prescribed form confirming the removal and a copy must be sent to all parties.

A referring party may then request that the matter be re-enrolled by completing and signing the prescribed “Request for Re-enrolment” form giving reasons for his or her absence.  This is not an affidavit.

There is no prescribed time period to bring the request for re-enrolment but it must be made within a “reasonable time”.

The Provincial Senior Commissioner or a delegated Commissioner must decide whether the referring party has provided the CCMA with a satisfactory explanation for his/her failure to attend the arbitration and that he/she has taken reasonable timeous steps to have the matter re-enrolled.

The Commissioner considering the request may decide whether the matter should be re-enrolled on the papers only without requiring submissions from the opposing party and without the need for a hearing.

The Commissioner must consider whether the absence was wilful. 

The Commissioner must then inform the parties of his/her decision.  If the request is granted the case will be rescheduled for arbitration. 

If the request is refused the matter will remain closed on the CCMA system and there will be no further processing of the case other than, possibly for the purposes of a review application.

A copy of the Directive can be accessed by clicking on the following link.

Gael Barrable

Gael Barrable
Partner in Employment

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