Employers have in the past been entitled to request the dismissal of a matter at conciliation proceedings when the dismissed employee, as the referring party, fails to attend.
But a recent judgment of the Labour Appeal Court has changed all this, says Numsa national legal officer, Prudence Gqoba.
The judgment
A recent judgment of the Labour Appeal Court (LAC) in Premier Gauteng and MEC for Social Services and Population Development / PHWSBC & Others (unreported as yet) found that the Labour Relations Act (LRA), 66 of 1995 does not give the CCMA or the Bargaining Council the power to dismiss an employee’s referral of a dismissal dispute because he/she failed to attend the conciliation meeting.
However, the following Rules of Conduct for Proceedings before the CCMA (CCMA Rules) paint a contradictory view:
1. Rule 13(4) of the CCMA Rules provides that where the referring party fails to attend at conciliation, the matter can be dealt with in terms of Rule 30 of the CCMA Rules.
2. Rule 30 of the CCMA Rules in turn provides for the dismissal of a matter where the referring party fails to attend “any proceedings” before the Commission, and conciliation proceedings would thus fall within the ambit of Rule 30.
The LAC held that section 191(4) provides that once the CCMA or a bargaining council has received a referral of a dismissal dispute for conciliation, the CCMA or the bargaining council has an obligation to conciliate it and a failure by the employee to attend a conciliation meeting cannot deprive him/her of his/her right to have the dispute arbitrated.
Where the LRA confers a right to a party, the CCMA Rules cannot take such right away.
The CCMA Rules, particularly Rule 30, must thus be interpreted in a manner which is consistent with the LRA.
In other words, the CCMA cannot place reliance on Rule 30 of the CCMA Rules to dismiss conciliation proceedings for non- attendance.
Of course, the judgment does not have any impact on the CCMA’s powers to dismiss a matter for non-attendance of a referring party at arbitration proceedings as such is expressly provided for in section 138(5) of the LRA.
Impact of the judgment for employers and implementation thereof by the CCMA
The CCMA has sought a legal opinion on the judgment and has decided not to challenge the judgement in the short term.
As the judgment was handed down on 21 December 2007, the CCMA will only implement the principles laid down therein in respect of all matters referred to the CCMA after the judgment and not retrospectively.
The CCMA Rules will also have to be amended by the deletion of Rule 13(4).
Although the CCMA concedes that it is bound by the judgment, the CCMA will find it difficult to reconcile the judgment with its mandate of resolving employment dismissals as speedily as possible.
The disadvantage for employers is that the judgment impinges on the conciliation meeting being a prime opportunity for the employer to attempt to settle the matter, with the assistance of the conciliating commissioner, so as to avoid protracted arbitration proceedings.
There is no obligation on the employee to attend the conciliation meeting and he/she can simply await the certificate of non-resolution and refer the matter for arbitration.
Source
Numsa Bulletin No 20 August 2008