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Other Possible Issues

Condonation for failure to comply with the Rules and form

Applicants need to apply for condonation if any referral or applications are delivered outside of the timeframes outlined by the LRA or the Rules of the CDR. The LRA states that if a person has been dismissed and wishes to refer the dispute to the CDR, they must do so within 30 days of dismissal. If an applicant has been dismissed and appeals the dismissal as per the company's appeal procedure, the 30 days only starts on the date that the dismissal is confirmed on appeal. For unfair labour practice allegations, the dispute must be referred within 90 days from the alleged incident.

If an applicant does not meet these timeframes, they need to apply for condonation. The condonation application form is attached to the referral form, and both must be completed and sent to the CDR. The condonation application may be reviewed on paper if sufficient information is provided by the parties. If more information is needed, parties may be called in for a hearing before a council commissioner.

A preliminary ("In-Limine") hearing will be held to discuss the late referral. The MEIBC commissioner will consider factors such as:

  • The degree of lateness (i.e., how late the application is)
  • The reasons for the delay and degree of fault
  • The referring party's prospects of success in the case
  • Any prejudice to the other party
  • Any other relevant factors

If the application for condonation is granted, the case will proceed to conciliation or con-arb. If unsuccessful, the case will be dismissed and closed. Parties may review the decision with the Labour Court.

What is meant by jurisdiction?

Jurisdiction refers to the power or competence of the CDR to hear and determine a dispute. If the CDR has jurisdiction, it means that the LRA allows the MEIBC to deal with the dispute. If a matter is out of the CDR's jurisdiction, it means that the LRA does not permit the MEIBC to handle it.

The right to legal representation

In general, an employee party may not be represented by a fellow employee unless that employee is a registered union member, official, or office bearer. Similarly, friends or relatives may not represent a party unless they qualify under specific rules. For dismissal cases related to conduct or incapacity, employer parties may only be represented by an employer organization or federation, while employee parties may only be represented by a union representative.

MEIBC conciliators may allow parties to be represented by lawyers in certain circumstances. Note that "consultants" are not permitted in CDR processes.

How to apply to refer a dismissal dispute to the Labour Court

If a dispute remains unresolved after conciliation, parties may apply to the CDR for referral to the Labour Court under section 191(6) of the LRA within 90 days of a non-resolution certificate. This is common in high-profile cases or when legal technicalities are involved.

The application, along with a motivation letter, must be sent to the CDR within 14 days of the conciliation certificate and must be served on the other party. The other party has 7 days to respond. The Secretary of the MEIBC, or a designated person, will decide on the application, with notification provided within 14 days.

How to have a subpoena issued and served

A subpoena compels attendance at arbitration or the submission of documents. To request a subpoena, complete LRA Form 7.16 with a motivation and submit it at least 14 days before the arbitration hearing. A witness fee is required, although a waiver may be requested.

The CDR may refuse to issue a subpoena if:

  • The person's evidence is deemed unnecessary
  • Insufficient notice time is given
  • No arrangements are made for witness fees and transport

Subpoenas must be served by the requester or by the Sheriff at least 7 days before the hearing. Witnesses are given seven days' notice of the arbitration date.

Review of arbitration awards

CCMA and bargaining council awards may be reviewed by the Labour Court. A review determines whether a reasonable decision-maker would have reached the same conclusion. Under section 145 of the LRA, a party may apply to the Labour Court to review an award if there is an alleged defect.

'Defect' includes:

  • Misconduct by the commissioner in their role
  • Gross irregularity in the arbitration process
  • Commissioner exceeding their authority
  • Award obtained improperly

Note that a review is not an appeal and does not assess the merits of the matter. CCMA and bargaining council awards cannot be appealed, with the exception of certain cases under sections 24(7) of the LRA and 10(8) of the EEA.