Study Unit 10 Flashcards
What are the 3 subcategories for disputes?
❑ disputes that arearbitrable (CCMA/BC);
❑ disputes that are justiciable (LC); and
❑ disputes that must be resolved by use of economic power (iro which can strike/lock-out)
What are disputes?
-disputes of interest are disputes about the creation of new rights, which are to be resolved by economic powe
- disputes of right are disputes about existing rights (statutory, contractual, collective agreements) which are resolved
through arbitration/adjudication.
What are the main functions of the CCMA?
❑ to conciliate disputes referred to the CCMA in terms of the LRA;
❑ if the dispute remains unresolved, to arbitrate the dispute if applicable legislation so requires, or by the consent of the parties;
❑ to assist in the establishment of workplace forums; and
❑ to compile and publish information and statistics about its activities
Referral times
What are the 3 referral timelines?
Unfair dismissal: 30 calendar
days of the date of the dismissal
Unfair labour practice: 90calendar days of the act or omission that allegedly constituted the unfair labour practice
Unfair discrimination(EEA): have to be referred to the CCMA within six
months after the act or omission that allegedly constitutes unfair discrimination.
What is concilliation?
-Intervention by neutral 3rd party to resolve the dispute
-Not binding, confidential and without prejudice
-Consensus seeking process Value
a) beneficial to employment relationship to resolve dispute through agreement
b) Lessens burden on CCMA if settlement reached at conciliation, no need to go to arbitration
What is the effect of concilliation?
If settled, agreement made an arbitration award or order of court
=If not settled, certificate of
non-resolution issued
What are the arbitration disputes the CCMA solves?
- unfair dismissal: relating to conduct or capacity;
- unfair dismissal: worker alleges continued employment intolerable (constructive dismissal)
- Worker does not know the reason for the dismissal
- an alleged unfair labourpractice
- exercise of organisationalrights
- interpretation of those collective agreements that do not make provision for dispute resolution procedures
What is the CCMA arbitration process?
1.Referral within 90 calendar days of non-resolution of conciliation
2.CCMA will only arbitrate if certificate of nonresolution issued
3.Hearing de novo during which party may: give evidence, call witnesses, cross-examine opposing
4.witnesses, provide concluding arguments
Inquiry by arbitrator/pre-dismissal arb: replacesdisciplinary hearing and arbitration; binding award issued at conclusion that can be reviewed at LC
5.Con-arb: arbitration takes place directly after conciliation (applies in respect of probation disputes) OR at a later stage if either party objects to the con-arb process
What disputes can be conciliated by bargainig councils?
- Freedom of association
- Disputes giving rise to strikes
- Unfair dismissal/unfair labour practices
- Entitlement to severance
What is the legal representation allowed in the CCMA?
A.Legal practitioner – person admitted to practice as attorney/advocate>
Rule 25(1)(a) Conciliation: in person or director/employee of company or member of employer’s organisation or
trade union official/representative
B.Rule 25(1)(c) Arbitration: can be represented in some disputes. If dispute
about unfair dismissal (misconduct and incapacity) no legal representation unless
parties and commissioner agree/ commissioner allows legal rep
Rule 25(1)(c)(ii) Factors that
commissioner will consider in
deciding whether to allow legal
representation: nature of
dispute, complexity, public
interest, comparative ability of
parties/reps
What are labour courts and what is their power?
Specialist courts with the same status as a division ofthe High Court; has national jurisdiction
Section 158 empowers the Labour Court to:
* grant an order for urgent interimrelief;
* grant aninterdict;
* grant an order of specificperformance;
* grant a declaratory order;
* award compensation;
* award damages
* costs order
How can arbitrartion awards be reviewed?
- First, arbitration awards of the CCMA may be reviewed in terms of section 145 (Review of arbitration awards)
- Second, any other functions performed in terms of the LRA may be reviewed in terms of section158(1)(g) (Powers of the LC; but not arbitration awards)
What are the defects in arbitration proceedings that are reviewable according to sec154?
1) the commissioner committed misconduct with regard to the duties of a commissioner as arbitrator;
2) the commissioner committed a gross
irregularity in the conduct of the arbitration
proceedings;
3) the commissioner exceeded their powers as arbitrator;
4) a party to the dispute has improperly
obtained the award.
Review of Arbitration Awards
What did teh Rustenburg Platinum Mines v CCMA case state regarding the review of arbitration awards?
SCA: CCMA awards are admin action thus reviewable ito PAJA
Review of Arbitration Awards
What did theSidumo & another v Rustenburg Platinum Mines case state regarding PAJA and review under sec145?
o Although CCMA awards are admin action ito s33 of Constitution-PAJA does not apply because s145 of LRA is a specialised provision that trumps more generalised provisions of PAJA
o Effect: award reviewable if commissioner’s decision is one a
reasonable decision-maker could not reach
