Section 138(5) of the South African Labour Relations Act, 1995 specifies that, if a party referring a dispute to arbitration (an "applicant") fails to attend the arbitration, the arbitrator may dismiss the matter. What the effect of dismissal is has been a subject of debate.

In Solomons v Phokelo NO, the CCMA and Food Lovers Market Kempton, the Labour Court held that "dismissal", in this context, meant that the matter was struck from the roll and that an applicant did not need to apply for a rescission of the dismissal ruling, but simply had to apply to have the matter re-enrolled upon providing a satisfactory explanation for their failure to attend the scheduled arbitration hearing.

In August 2021, the Commission for Conciliation, Mediation and Arbitration ("CCMA"), issued the Directive on the Determination of Dismissals under section 138(5)(a) of the Labour Relations Act ("LRA)", confirming the view that the Commissioner is not at liberty to dismiss a matter where the applicant fails to arrive at arbitration, but may only strike the matter from the roll.

In addition, on 21 April 2023, the CCMA amended Rule 30, which deals with instances where parties fail to attend arbitration proceedings, and introduced Rule 31C, which deals with the procedure to be followed to have a matter re-enrolled if it has been struck from the roll as a result of non-attendance at a previously scheduled arbitration.

Prior to being amended, Rule 30 provided that if a party to a dispute failed to attend or be represented at any arbitration proceedings before the CCMA, and that party had referred the dispute to the CCMA, the Commissioner could dismiss the matter by issuing a written ruling.

The amended Rule 30 states that if the referring party to the dispute fails to attend or be represented at any arbitration proceedings before the CCMA, but has good reason for not doing so, then the commissioner must direct that the matter be rescheduled for arbitration. If the reason is, on the face of it, wilful or unexplained, or the commissioner does not accept the explanation, the commissioner may remove the matter from the roll.

However, in its recent decision in Mohube v CCMA & Others, the Labour Appeal Court ("LAC") disagreed with the interpretation adopted by the Labour Court in the Solomons decision. It stated that equating the term "dismissal" in the LRA to a matter being struck from the roll is not only incorrect but also creates legal confusion. It went on to state that a commissioner has a discretion whether or not to dismiss a matter, and must balance the interests of the applicant and respondent. Whilst the right of an applicant to have a dispute arbitrated should not be easily closed, a balance should be struck to ensure that a respondent in a dispute is not required to wait indefinitely for the dispute to be finalised.

The court went on to provide these guidelines:

  • An arbitrator's power to dismiss should not be exercised "mechanically". The arbitrator should apply their mind to determine whether it is appropriate to dismiss the matter.
  • The mere fact that the CCMA file indicates that notice of the arbitration had been properly served on the applicant is not sufficient to justify the dismissal of the matter.
  • It may be appropriate, in certain circumstances, especially where it is the first instance of an absence from arbitration, to adopt a lesser "sanction" than the dismissal of the matter.
  • For example, the matter may be postponed sine die (ie, without a date for the resumption of the matter being given). Alternatively, the matter could be postponed to a specified date and the case management officer is directed to take steps to enrol it and to inform the applicant of the new enrolment.

The Mohube judgment binds the CCMA and provides much needed clarity in respect of arbitration disputes where an applicant party is in non-attendance. Following the judgment, the CCMA issued a Directive on 26 May 2023 repealing, with immediate effect, the Directive on the Determination of Dismissals under section 138(5)(a) of the LRA and confirming that Commissioners still retain the power to dismiss a matter in terms of the LRA. The CCMA also indicated that it would soon publish guidelines in this regard and it is likely that these guidelines will reflect the views expressed by the LAC.

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