03 Apr 2007: ISS Today: The Hollow Awards of the South African CCMA: How to Deal With Them

3 April 2007: The Hollow Awards of the South African CCMA: How to Deal With Them

 

One luxury the Commission for Conciliation, Mediation and Arbitration (CCMA) cannot afford is to misallocate such time as they have to deal with the many disputes that flood into their offices daily. It would appear, however, that they currently give too little attention to the verification of which disputes fall within their jurisdiction, and are indiscriminate in accepting cases, which has adverse consequences for their ability to cope with the workload.

 

A cursory investigation at the CCMA in Johannesburg revealed that between 2004 and 2006 a variety of Sector Education and Training Authorities (SETAs) had 66 cases either finalised or pending in the CCMA. All these cases related to employment issues such as unfair dismissals, unfair conduct with regard to promotion/probation/benefits, and misconduct. In most of these disputes the employees were the complainants. In an overwhelming majority, attorneys and advocates were engaged by the employees and invariably by the SETAs involved, obviously at great expense. Most of these lawyers assume that for as long as a matter is based upon a labour or employment relationship, the CCMA is seized with jurisdiction to resolve the dispute. In many of the cases awards have been made already. Only a few were rejected on the grounds of the lack of jurisdiction of the CCMA.

 

A closer look at the relevant laws, however, reveals that in some cases the CCMA does not have the requisite jurisdiction, even though the matters may be employment-related. In consequence any judgment/award they make, may be hollow and lack the force of law. Some of these cases are those emanating from SETAs.

 

The CCMA is a statutory independent juristic person created by the Labour Relations Act, with the primary function of resolving labour-related disputes by using the alternative dispute resolution toolbox: conciliation, mediation or arbitration. The CCMA is not a court of law. The CCMA tribunals are presided over by adequately qualified Commissioners appointed by the governing body in terms of the Act. Of course, the required “adequate qualification” is one in law and considerable experience in the practice of law! These are people that must do things “according to law” without assuming what the law says.

 

The same Act creates the Labour Court and the Labour Appeal Court as courts of law and equity presided over by duly appointed judges with concurrent jurisdiction with the High Courts of the land and inherent powers and standing in labour-related disputes. The Labour Court, in matters falling under the Labour Relations Act or any other law, has, in addition, exclusive jurisdiction. One such other law is the Skills Development Act, No. 97 of 1998.

 

The Skills Development Act created certain institutions to deal with issues relating to skills development in order to address the workplace needs of the country. The Act has created institutions such as the National Skills Authority, with the main function of serving the Minister of Labour with advice on development of the national skills policy and strategy, and the SETAs with the main function of facilitating the skills development programme in the country.

 

The Skills Development Act requires that SETAs draw up their own constitutions, which must be approved by the Minister of Labour. Such constitutions must provide, inter alia, for the appointment of “an executive officer, and such other employees necessary for the effective performance of the functions of the SETA… including the determination of their terms and conditions of employment.” What this means, in effect, is that all employment-related issues of the SETAs are totally matters arising out of the Skills Development Act.

 

The Skills Development Act states, in section 31(1), as follows:

      Subject to the jurisdiction of the Labour Appeal Court and except where this Act
      provides otherwise, the Labour Court has exclusive jurisdiction in respect of all
      matters arising from this Act.

 

As employment issues gave rise to disputes that were eventually referred to the CCMA and the employment relationships originate from and are regulated by the constitutions of the SETAs as authorised by the Skills Development Act, and the Act says only the Labour Court has jurisdiction in all matters arising from the Act, what jurisdiction will the CCMA have in such matters? On what basis will such awards have legal force and validity?

 

It is axiomatic that where jurisdiction is expressly excluded by law no agreement can vest that forum with jurisdiction as such agreement will be contrary to law. Neither can consent to jurisdiction vest a forum/tribunal with jurisdiction where the law expressly divests it of such jurisdiction. 

 

The unavoidable conclusion is that the awards made by the CCMA in matters relating to the SETAs arising out of employment relationships are invalid and can safely be ignored as having no force of law in that they were made by a forum having no legal authority to pronounce on those issues.

 

Jake Moloi, Criminal Justice Programme, ISS Tshwane (Pretoria)