Objecting To The CCMA Con/Arb Process

When an employee refers a dispute to the CCMA, e.g., an unfair dismissal dispute, the CCMA ordinarily sets the matter down for a con/arb process, which means that arbitration will immediately follow if the parties are unable to conciliate the dispute successfully.

In terms of rule 17(2) of the Rules for the Conduct of Proceedings Before the CCMA, any party to the dispute can object to the con/arb process, on written notice, in order that arbitration be set down on a different date.  Such an objection must be filed at least seven days prior to the scheduled con/arb proceedings.

In this regard, the commissioner will not make any judgements on the merits of the case during a conciliation process, but will attempt to guide the parties regarding settlement proposals, and the employer will also not be penalised if it does not attend the conciliation proceedings.

It is important to note that rule 17(2) does not apply to disputes relating to the following:

  • Probation
  • Unfair Labour Practices relating to Probation
  • A dispute relating to a compliance order referred in terms of section 69(5) of the BCEA
  • Failure to pay any amount owed to the employee in terms of section 73A of the BCEA

Recently, in the matter of Valinor Trading 133 CC t/a Kings Castle v CCMA & Others (JR292/19), an unfair dismissal dispute was set down for a con/arb process on 10 September 2018.  The company objected to the immediate commencement of arbitration after conciliation three days before the scheduled con/arb process, and did not attend the proceedings on 10 September 2018.

The Commissioner, after issuing a certificate of non-resolution, proceeded to arbitration based on the fact that the objection to the con/arb process had not been filed in accordance with rule 17(2) mentioned herein above.  The CCMA accordingly issued a Default Arbitration Award.

After the CCMA dismissed an application to have the Default Award rescinded, the matter proceeded to the Labour Court, which held that:

“Where a party objects to commencement of arbitration immediately after conciliation, a commissioner is not empowered to arbitrate  The fact that the objection was not done in terms of the rules of the Commission for Conciliation Mediation and Arbitration (CCMA) does not detract from the fact that a party has objected.  Continuing with the arbitration in the face of an objection is inconsistent with section 34 of the Constitution of the Republic of South Africa, 1996.”

According to the Court, the Labour Relations Act (LRA), in terms of section 191(5A)(c) thereof, does not prescribe a time period in which the parties must file an objection to con/arb, and, therefore, the Rules for the Conduct of Proceedings Before the CCMA cannot prescribe a time period.

Section 35 of the LRA further grants a commissioner the discretion to condone any failure to comply with time periods with the goal to achieve the aims of the LRA.

The Court further held that the company was not in wilful default (by failing to attend the proceedings), considering that the arbitration proceedings could not lawfully proceed in light of the objection thereto.

In response to the judgment, on 27 February 2023, the CCMA issued a directive to the CCMA Commissioners advising that the CCMA has filed an application for leave to appeal the Labour Court judgment on the following grounds:

  • The Court erred in not finding that the company did not deliver a valid objection to the con/arb process within the prescribed time frame.
  • The Court erred in not finding that a party whose objection was delivered outside of the prescribed time periods must first obtain a ruling condoning the late filing of the objection before the objection could be entertained by the CCMA.

In the interim, the CCMA has directed all commissioners as follows:

  • The Rules for the Conduct of Proceedings Before the CCMA, inclusive of rule 17(2), remain in force, subject thereto that a failure to comply with the rules may be condoned on good cause shown by any party seeking condonation.

Simply put, from the CCMA’s point of view, any party who seeks to object to the con/arb process must comply with rule 17(2) above, and in the event that the objection is filed outside of the prescribed time periods, the party must apply to condone the late filing of the objection, providing sufficient grounds for the late filing thereof.