Employment disputes can happen for many reasons, from allegations of discrimination to disputes over wages or termination of employment. For certain disputes, parties may turn to a process called "conciliation-arbitration," or "con-arb," as a means of resolving their differences.

Con-arb involves an initial attempt at conciliation between the parties, followed by a binding arbitration if conciliation fails. While con-arb can be an effective means of dispute resolution, it's important for employers and employees to be aware of their rights in this process, including the right to object to participating in con-arb.

This article explores the right to object to con-arb in employment disputes, and what employers and employees need to know about this important aspect of the dispute resolution process.

South Africa's Commission for Conciliation, Mediation and Arbitration ("CCMA") often experiences substantial case backlogs, dispute referrals and resource constraints. In response, the 2002 amendments to the Labour Relations Act, 1995 ("LRA") introduced the speedier and more cost-effective dispute resolution process of con-arb.

However, parties have the right to object to the con-arb process for disputes included in section 191(5)(a) of the LRA. The CCMA rules stipulate that objections must be delivered within seven days before the hearing. In such cases, only conciliation will take place.

In the recent decision of Valinor Trading 133 CC t/a Kings Castle v The CCMA and Others, the Labour Court reiterated that rules are designed to assist, not bind, courts or tribunals. The corollary does not apply. Ultimately, rules cannot surpass legislation or the Constitution.

In the Valinor case, Mashoana J was tasked with determining an application to review and set aside two rescission rulings related to a default award. In the process, he considered the crucial question: "Is a commissioner empowered to proceed with an arbitration involving a dispute referred to in terms of section 191 (5)(a) of the LRA despite an objection by the opposing party? In other words, can a commissioner ignore an objection purely on the basis that it was not raised at least seven days before the enrolment date as provided for in the CCMA Rules?

Facts, reasoning and findings

During the CCMA proceedings, the employer objected to a con-arb process but did not do so within the seven-day period provided for in the CCMA rules. The commissioner proceeded to arbitrate the matter on the basis that the objection was "invalid".

Mashoana J held that a commissioner is not empowered to proceed with the arbitration or to ignore the objection, regardless of the timing of the objection. In other words, a party has a satisfactory right to prevent arbitration proceedings if they object. Mashoana J held that the decision of a commissioner who ignores the objection and proceeds, is a nullity, and the CCMA rules cannot take away this statutory right of an objecting party.

Accordingly, the conduct of the commissioner in commencing the arbitration was contrary to the provisions of the LRA read with the CCMA rules and offended the principle of legality.

Mashoana J pointed out that while the LRA does not allow arbitration to proceed where another party has objected, CCMA rule 17 (2) provides that a party that intends to object to a dispute being dealt with in terms of section 191 (5A), must deliver a written notice to the CCMA and the other party, at least seven days prior to the scheduled date in terms of sub rule (1).

The Labour Court held that it will be wrong, to interpret section 191(5A)(c) of the LRA to mean that any objection raised outside the prescribed period ceases to be an objection. It emphasised that the section itself does not prescribe a time period within which to object and that the proviso means that once a party objects to arbitration, arbitration cannot lawfully commence.

This section must be read with other provisos, in particular section 136 (1) (b) of the LRA, which allows parties the right to request that the dispute be resolved through arbitration within 90 days of the certification. Mashoana J explained that the only purpose of section 191 (5A) is to expedite the resolution of certain disputes.

Mashoana J highlighted that the CCMA rules:

  • exist for the court or tribunal and not the court or tribunal for the rules;
  • are designed for conducting proceedings;
  • are not meant to trump a statutory provision;
  • must be interpreted through the prism of the Constitution;
  • deal with form whereas the LRA deals with substance; and
  • are discretionarily published to regulate and not to prescribe as it were.

In light of this, he cautioned that "A CCMA commissioner cannot be a captive of the time frames prescribed in the Rules. Such is clear when the provision of rule 35 of the Rules is taken into account".

Therefore, the Labour Court held that once a party objects to arbitration, arbitration cannot lawfully proceed.

Key Takeaways

This judgment is an important reminder of the status and purpose of the CCMA rules. While they provide a framework for the expeditious and effective use of the CCMA and must still be complied with, they remain subject to the LRA and the Constitution. They cannot trump statutory or constitutional rights.

However, this judgment pertains to a specific CCMA rule and provision of the LRA, and certainly does not constitute a "free for all" or overhaul of the time periods outlined in the CCMA rules. A substance over form approach, with due regard to empowering legislation and the constitution, must ultimately prevail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.