In order for the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as the CCMA) to entertain a dispute, the party referring the matter must ensure that the CCMA has jurisdiction to hear the matter.
The CCMA is a creature of statute, and Section 133 of the Labour Relations Act, 66 of 1995, (hereinafter referred to as the LRA), set out the disputes which the CCMA may adjudicate on.
Section 191(a) of the LRA confers the right to hear disputes turning on unfair dismissals and unfair labour practices, subject to such referrals being filed within the prescribed time frame, and being duly completed.
The Employee who refers an unfair dismissal dispute to the CCMA will bear the onus to prove that:
A lawful employment relationship existed between the parties;
The termination of that relationship by the Employer; AND
that the dismissal was in terms of Section 186 of the LRA.
Should the Employee discharge the onus, the Employer will have to prove that the dismissal was both substantively and procedurally fair.
The Commissioner will make a finding in favour of the party who, on a balance of probabilities, discharged his onus sufficiently.
Should an Employee however fail to convince the CCMA of:
his employment; or
his subsequent dismissal;
the CCMA will not have jurisdiction to entertain the matter.
The Labour Court recently confirmed that the CCMA may not, as a general rule, decide its own jurisdiction, as this is a matter to be considered by the Labour Court.
However, this does not mean that an opposing party is prevented from raising, and arguing, a point in limine which must be decided on before the matter can proceed to arbitration.
The Commissioner will make a finding on the point in limine, called a Jurisdictional Ruling. Should the Commissioner find in favour of the opposing party, the dispute will be dismissed due to the CCMA’s lack of jurisdiction to entertain the matter.
It is thus imperative for the Applicant to ensure that the referral falls within the CCMA’s prescribed ambit, alternatively, the Respondent must scrutinize the referral in order to ascertain if the matter can be speedily dealt with in terms of a point in limine.
Ian Mc Laren