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Name of presenter: Craig Bosch Title of Presentation : Jurisdictional issues in the CCMA

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?

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Name of presenter: Craig Bosch Title of Presentation : Jurisdictional issues in the CCMA

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  1. SASLAW SEMINAR 24 APRIL 2012 Name of presenter: Craig Bosch Title of Presentation: Jurisdictional issues in the CCMA

  2. 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

  3. 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’

  4. 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’

  5. 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)

  6. 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)

  7. 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

  8. 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)

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