Prior to 1 August 2002, the procedure followed for arbitrating a dispute was in terms of the provisions of section 191(5)(a). In essence, this required an employee to formally request arbitration of an unresolved dispute (which could be arbitrated by the CCMA) by filling in LRA Form 7.13. The amendments of 1 August 2002 introduced the con-arb process by amending section 191 with the inclusion of subsection (5A). In terms of section 191 (5A), the CCMA is obliged to commence arbitration immediately after unsuccessful conciliation in respect of:
- Dismissal and unfair labour practice disputes relating to probation;
- Dismissal disputes relating to conduct and capacity (excluding dismissal arising from participation in an unprotected strike) where no objection was lodged;
- Constructive dismissal, where no objection was lodged;
- Dismissal where the employee does not know the reason for the dismissal, where no objection was lodged; and unfair labour practices, where no objection was lodged.
Rule 17(2) of the Rules for the Conduct of Proceedings before the CCMA allows any party to disputes mentioned here above, to object to the matter being dealt with in terms of this new section, i.e. section 191(5A), provided that the objection notice must be delivered at least 7 days prior to the scheduled date for the process. It is important to note that the amendment of 1 August 2002 still left section 191(5)(a) in force. Therefore when a party files an objection in terms of Rule 17, it is in fact objecting to the matter being dealt with in terms of section 191(5A) and the matter must then be dealt with in terms of section 191(5)(a). This is the essence of the judgment in Ceramic Industries Ltd v CCMA & Another (2005) 12 BLLR 1235 (LC).
There are certain disputes that cannot be dealt with in terms of section 191(5A). These include inter alia disputes relating to:
- Organizational rights;
- Disputes about the interpretation and application of collective agreements;
- Disputes about workplace forums;
- Section 186(1)(b) dismissals (non-renewal of contracts, etc.);
- Section 187 dismissals (automatically unfair);
- Section 189 dismissals (operational requirements)
- Entitlement to severance pay.
In practice, when a matter is set down for con-arb, the arbitration must commence immediately after a certificate of non-resolution is issued. If it is impractical for the hearing to proceed for any reason, the arbitration part may be adjourned. A new scheduled date is then automatically set down without the need for LRA Form 7.13 to be completed.
When an objection is filed, the four scenarios here below are possible -
1. Both parties may attend
In such cases, the process must be conducted as a conciliation hearing and the employee will be obliged to formally request arbitration by completing and serving LRA Form 7.13 if the dispute remains unresolved. The form may there and then be completed and served on the other party. The arbitration may not be scheduled unless there is proof that the form was served on the other party. If the arbitration is by mistake scheduled without such proof, the LRA Form 7.13 may be completed and served on the scheduled date of the arbitration and the arbitration may proceed but only if the other party consents.
2. The Employer party may attend but the Employee may fail to attend
In such cases, a certificate of non-resolution must still be issued and the Employee still has an opportunity to request arbitration by completing and serving LRA Form 7.13. The matter may only be dismissed at arbitration if the Employee does not attend the arbitration.
3. Only the Employee party may attend and the Employer party may fail to attend
In such cases, a certificate must be issued and the employee will be advised to serve and file LRA Form 7.13. This differs from a con/arb where no objection has been filed, in that arbitration may in such circumstances be heard in default immediately after a certificate is issued.
4. Both parties may fail to attend
In such cases, a certificate must still be issued and the employee will still have the opportunity to formally request arbitration by completing and serving LRA Form 7.13. This differs from a con/arb hearing where no objection was filed because in those circumstances, a certificate must be issued and the matter must be dismissed at the arbitration stage of the con/arb immediately.
In conclusion, Employers should consider thoroughly whether they want to object to the con/arb process or not. If they do not object, they must be prepared to arbitrate immediately, but the flip-side is that if the Employee does not attend the proceedings, the matter will be dismissed at the arbitration process of the con/arb on the same day. If the Employer has objected and the Employee does not attend, the matter will not be dismissed at the conciliation but a certificate will be issued allowing the Employee to still request arbitration.
LabourNet can assist in giving advice on what the most appropriate strategy would be and to assist our clients to prepare for arbitration.
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